12 Fla. L. Weekly Supp. 518a

Insurance — Automobile — Cancellation of policy — Absence of insurable interest — Appeal from judgment in favor of plaintiff who added vehicle titled only in adult daughter’s name to plaintiff’s existing automobile insurance coverage in action against insurer who cancelled policy and denied claim for vandalism damage to vehicle after allegedly learning post-loss that daughter was sole titleholder — Error to enter partial summary judgment on issue of plaintiff’s insurable interest in vehicle where plaintiff’s statements that she loaned daughter down payment for vehicle purchase, would “have” to assume vehicle payments if daughter failed to make them, and loaned daughter vehicle while vandalized vehicle was being repaired fail to remove all doubt as to whether plaintiff possessed insurable interest — Doubt exists as to whether outlay of down payment gives rise to insurable interest, especially in absence of documentation, record is silent as to whether plaintiff was legally obligated to assume payments or loan vehicle, and record showing plaintiff owned several vehicles at time of repair raises doubt as to whether plaintiff suffered any detriment from temporary loss of one vehicle — Because grant of summary judgment on issue of insurable interest was erroneous, trial court also erred in instructing jury in trial regarding material misrepresentation on application that insurable interest had already been established — Instruction on insurable interest constituted prejudicial error because it misstated important fact to jury and created impression that insurer acted improperly — Remand for new trial

SOUTHERN GROUP INDEMNITY INC., Appellant, vs. TERRI GIBBS, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 03-5012AP-88B. UCN 522003AP005012XXXXCV. September 9, 2004. Appeal from Final Judgment, Pinellas County Court, County Judge Robert J. Morris, Jr., County Judge Myra Scott McNary. Counsel: David B. Paluka, Weston, and J. Emery Wood, Wood & Associates, P.A., St. Petersburg, for Appellant. James J. Dowling, Berger & Dowling, Palm Harbor, and William F. Rutger, Rutger & Donaldson, Palm Harbor, for Appellee.

ORDER AND OPINION

(DAVID A. DEMERS, J.) This matter is before the Court on an appeal filed by Southern Group Indemnity, Inc. (Southern) from the Final Judgment and Order entered on May 21, 2003, awarding Appellee $3,640.46 in accordance with a jury verdict in her favor. Southern contends that the trial court erred in two respects: (1) by granting partial summary judgment in Appellee’s favor on whether she possessed an insurable interest in an automobile; and (2) by instructing the jury that Appellee had such an interest, which Southern maintains was irrelevant to the remaining issue at trial and also prejudicial. Having fully reviewed the briefs, the record, and pertinent legal authority, this Court hereby reverses the trial court on both grounds raised by Appellant and remands this matter for a new trial.

This matter arises out of the addition of a vehicle to Appellee’s existing automobile coverage with Southern in November of 1996. The vehicle in question was actually purchased by Appellee’s then 19-year-old daughter, Laurie Gibbs, and was titled in her name only. Appellee claims that Southern was aware of the title situation at the time she sought additional coverage; Southern claims that Appellee indicated that she shared title with her daughter. While Appellee states that she loaned her daughter $4500.00 to make a downpayment on the vehicle, it is unclear from the record at the time summary judgment was granted how Laurie was obligated to repay that loan. There is also no indication in the record that Appellee was a party to any financing for the vehicle.

In early December of 1996, Laurie’s vehicle was vandalized, and Appellee filed a claim with Southern for damages. Southern maintains that the first time it became aware that Laurie was the vehicle’s sole titleholder was on December 26, 1996, when it received a copy of the vehicle’s registration. Southern then cancelled Appellee’s policy and denied the claim.

Appellee subsequently paid to repair the vehicle and then sued Southern, claiming it had wrongfully denied her claim. Southern countered that Appellee had no insurable interest in the vehicle and that Appellee had misrepresented herself as a co-owner of the vehicle.

Initially, the trial court granted summary judgment for Southern, but this Court reversed, finding that genuine issues of fact remained concerning both the insurable interest and misrepresentation. Thereafter, Appellee sought summary judgment on the insurable interest issue, claiming that the affidavits of herself and Laurie resolved all of the factual issues raised by this Court in reversing the summary judgment granted to Southern. In particular, Terri Gibbs’ affidavit stated that (1) she loaned her daughter $4,500 as a downpayment for the car; (2) she would have to replace the car if it were lost; (3) she would have to assume car payments if her daughter was unable to make them; and (4) she loaned her daughter “one” of her cars while the vandalized vehicle was being repaired. Laurie Gibbs’ affidavit reiterated points (1) and (4).

Southern filed nothing in response to Appellee’s motion, contending that as this Court had previously ruled that a factual dispute existed regarding insurable interest, this ruling constituted the law of the case.¹ The trial court, however, granted Appellee’s motion, finding that the uncontroverted facts established Appellee’s insurable interest because they showed that she had a substantial economic interest in the vehicle. Specifically, the facts the trial court cited were the loan for the downpayment; Appellee’s statement that she would have to assume car payments if her daughter ceased paying them; and (3) Appellee’s statement that she added the vehicle to her policy because of the money she loaned for the downpayment.

Thereafter, a jury trial was held on the misrepresentation issue. Over Appellant’s objection that any reference to insurable interest would be prejudicial,² the trial court instructed the jury that “[i]n this case it has already been established that the Plaintiff, Terri Gibbs, had an insurable interest in her daughter’s automobile when insurance was issued on it.” Thereafter, the jury returned a verdict in Appellee’s favor.

Appellant contends that Appellee was not entitled to partial summary judgment on the issue of insurable interest because the affidavits and deposition testimony she relied upon did not remove all genuine issues of material fact. In response, Appellee notes that Appellant filed nothing in response to her motion. However, the Second District has determined that even where a party opposing the motion submits no affidavits in response, summary judgment may still be unwarranted if the movant fails to first prove the absence of any material fact. See Bryant v. Florida Inland Theatres, Inc., 274 So. 2d 249, 251 (Fla. 2d DCA 1973); see also Gomes v. Stevens, 548 So. 2d 1163, 1164 (Fla. 2d DCA 1989) (burden is on movant to “demonstrate conclusively” that opposing party cannot prevail); Berenson v. So. Baptist Hosp. of Fla., Inc., 646 So. 2d 809, 810 (Fla. 1st DCA 1994) (per curiam) (nonmoving party need not come forward with any evidence or inferences until movant has met “exceedingly high burden” of “completely negat[ing] all allegations and inferences raised by the nonmoving party”). Therefore, this Court must determine if the evidence submitted by Appellee removes all doubt that as a matter of law, she possessed an insurable interest in her daughter’s vehicle.

This Court agrees with Appellant that Appellee’s evidence does not remove all such doubt. Regarding insurable interest, § 627.405, Florida Statutes, provides:

1) No contract of insurance of property or of any interest in property or arising from property shall be enforceable as to the insurance except for the benefit of persons having an insurable interest in the things insured as at the time of the loss.

(2) “Insurable interest” as used in this section means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.

(3) The measure of an insurable interest in property is the extent to which the insured might be damnified by loss, injury, or impairment thereof.

§ 627.405, Fla. Stat. (1995). While this statute does not make insurable interest dependent upon title, see, e.g., Aetna Ins. Co. v. King, 265 So. 2d 716, 718 (Fla. 1st DCA 1972), case law reveals that insurable interest in the absence of title is a very fact-intensive inquiry and that the cases in which such an insurable interest have been found have involved facts far different from those in the present matter. See, e.g., Overton v. Progressive Ins. Co., 585 So. 2d 445 (Fla. 4th DCA 1991) (under “general principle” that a wife has an insurable interest in her husband’s property where she has a pecuniary or beneficial interest in the property or would suffer some disadvantage from its loss, wife was held to have insurable interest in vehicle which she drove); King, 265 So. 2d at 718-19 (mother held insurable interest in grocery store property where she owned the property prior to conveying it to her daughters and daughters placed proceeds from store in a special account for mother’s benefit); Skaff v. United States Fidelity & Guaranty Co., 215 So. 2d 35 (Fla. 1st DCA 1968) (insurable interest found where Skaff was innocent purchaser for value of stolen automobile).

The present matter does not concern spouses or a parent who conveyed property to her child, but instead a parent whose adult child purchased a vehicle that she clearly did not operate for any financial benefit to her mother. While Appellee has indeed stated that she loaned her daughter money for the downpayment and would “have” to assume car payments if Laurie failed to make them, the record developed in support of the summary judgment motion is still silent on whether Laurie was legally obligated to repay her mother or whether Appellee was legally obligated to assume Laurie’s car payments. Also, although Appellee loaned a car to Laurie while the vandalized vehicle was being repaired, Appellee stated in her deposition that she owned “several” cars at the time of the repair, and there is no evidence that she was legally obligated to make such a loan.

Even given Appellee’s financial outlay, doubt still remains as to whether such outlay gives rise to an insurable interest, especially in the absence of documentation. Likewise, if Appellee owned several vehicles at the time she loaned one to her daughter, doubt exists regarding whether Appellee suffered any detriment from the temporary loss of one automobile. Therefore, this Court cannot conclude that the record removes all doubt as to whether Appellee possessed an insurable interest in the subject vehicle. See Gomes, 548 So. 2d at 1164 (summary judgment inappropriate if record raises even the “slightest” doubt that an issue might exist). Hence, the entry of partial summary judgment in Appellee’s favor was erroneous.

Appellant’s second point on appeal³ is that, at the trial regarding material misrepresentation, the trial court erred on instructing the jury that insurable interest had already been established because any reference to insurable interest was irrelevant and prejudicial. While “a trial court’s decision to grant or withhold a jury instruction is reviewed for abuse of discretion,” Morton Roofing, Inc. v. Prather, 864 So. 2d 64, 68 (Fla. 5th DCA 2003), prejudicial error warranting reversal occurs where the instructions are “ ‘reasonably calculated to confuse or mislead’ ” the jury and thus result in a “ ‘miscarriage of justice.’ ” Goldschmidt v. Holman, 571 So. 2d 422, 425 (Fla. 1991) (quoting Fla. Power & Light Co. v. McCollum, 140 So. 2d 569, 569 (Fla. 1962); § 59.401, Fla. Stat. (1989)).

Appellee contends that the court’s instruction that insurable interest had been established was proper because it was but a single instruction that accurately stated the facts. However, as just discussed, the evidence did not establish Appellee’s insurable interest as a matter of law, and the jury could have returned a verdict in Appellant’s favor based upon the absence of an insurable interest. Where summary judgment is erroneously granted, giving the jury an instruction based upon the summary judgment constitutes reversible error. See, e.g., Westland Skating Center, Inc. v. Gus Machado Buick, Inc., 542 So. 2d 959, 963-64 (Fla. 1989) (where summary judgment had been erroneously granted based solely upon a party’s compliance with a building code, resultant giving of disputed jury instruction constituted reversible error).

Further, this Court agrees that the instruction regarding insurable interest was prejudicial to Appellant because it misstated an important fact to the jury and created the impression that the Appellant acted improperly. Thus, as the jury might reasonably have been misled regarding the propriety of Appellant’s conduct, the instruction on insurable interest constituted prejudicial error. See Fla. Power & Light, 140 So. 2d at 569 (proper inquiry is not whether jury was misled but rather whether they might reasonably have been misled).

Therefore, it is

ORDERED AND ADJUDGED that the Final Judgment is reversed and this cause is remanded for a new trial consistent with this Order and Opinion.

It is further

ORDERED AND ADJUDGED that Appellee’s Motion for Attorney’s Fees is denied.

It is further

ORDERED AND ADJUDGED that Appellant’s Motion for Oral Argument is denied.

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¹The Court understands this to be Appellant’s position from the Motion for Rehearing it filed after Gibbs’ motion for summary judgment was granted.

²Appellant claimed prejudice because insurable interest had already been established and any reference to it would confuse the jury. The insurable interest issue entered the trial because the trial court had allowed Appellee to impeach one of Southern’s witnesses with the company’s interrogatory responses. In those responses, the sole reason given for canceling Appellee’s insurance was that she lacked an insurable interest, with no mention of misrepresentation.

³The Court finds it necessary to address this issue because if it is ultimately determined that Appellee possessed an insurable interest, Appellant would still have an affirmative defense of misrepresentation and this Court must therefore determine if the misrepresentation issue was appropriately tried below. We note, however, that if it is ultimately determined that Appellee had no insurable interest, the misrepresentation issue would become irrelevant.

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