13 Fla. L. Weekly Supp. 358a
Insurance — Personal injury protection — Application — Misrepresentations — Motion to strike affirmative defense alleging insured committed material misrepresentation on application when she stated covered vehicle would not be used for business purposes is granted — Where definition of term “business purposes” is never delineated in policy or any other document provided to insureds or their agent, term is an undefined term subject to differing interpretations that must be construed liberally in favor of insureds and strictly against insurer and cannot be used to exclude insureds from coverage
ADVANCED HEALTH SERVICES, III, (For Services Rendered to Julio and Luz Hincapie), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, of the 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 02-07236 CC 26 (02), 02-07235 CC 26 (02) (Consolidated). December 5, 2005. Anna Maria Pando, Judge. Counsel: Monica Barnes. Martin I. Berger, Samole & Berger, P.A., Miami.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSE OF MATERIAL MISREPRESENTATION AND FINAL JUDGMENT
THIS MATTER, having come on to be heard on December 5, 2005, on Plaintiff’s Motion to Strike Defendant’s Affirmative Defense of Material Misrepresentation, and the Court, being otherwise fully advised on the premises, it is
CONSIDERED, ORDERED AND ADJUDGED:
Plaintiff’s Motion is hereby Granted and Final Judgment is entered in this matter. The Court makes the following findings:
1. Luz Hincapie entered into an insurance contract [policy number UAU 000553725] with the Defendant, United Automobile Insurance Company, (“United Automobile”) for a personal automobile policy. The contract was effective from July 17, 2001 through January 17, 2002.
2. The policy of insurance insured Luz and Julio Hincapie for personal injury protection benefits.
3. Julio and Luz Hincapie were involved in an automobile collision of July 22, 2001 and sustained personal injuries as a proximate result of that collision. Julio and Luz Hincapie treated at the Plaintiff, Advance Health Services, III, Inc. By prior Order of this Court, all treatment was reasonable, related, and necessary. The total bills due and owing, including interest, on this case relating to injuries sustained by Julio Hincapie are $7,721.41. The total bills due and owing, including interest, on this case relating to injuries sustained by Luz Hincapie are $5,815.32.
4. Julio and Luz Hincapie assigned the right to collect under the United Automobile policy of insurance to the Plaintiff through a valid assignment of benefits.
5. The sole remaining issue before the Court is the Defendant’s affirmative defense of material misrepresentation.
6. In its pleadings, United Automobile alleges that Luz Hincapie committed a material misrepresentation on her Application for Insurance when she stated that the covered automobiles would not be used for business purposes.
7. The Application for Insurance contains a Statement of Non-Business Use, signed by Mrs. Hincapie, which reads as follows:
I hereby state that each vehicle listed on this application, and any vehicle endorsed to my policy at a later date, are not and will not be used for delivery, business, or commercial purposes other than commuting to/from work locations. During the policy term, if you begin using your vehicle for business, you must notify the Company in writing so that your private passenger automobile insurance policy can be cancelled. Failure to provide this notice will result in all your insurance policy coverage being void or voidable.
8. This defense fails, however, as the Defendant did not properly define the term “business purposes” as used in its application.
9. At the deposition of the underwriting customer service supervisor, Jorge De La O, Mr. De La O was asked a series of questions about the definition of the term “business purpose”. In his response, he testified that there exists no definition of the term in the Application for Insurance, in the Policy of Insurance, in the Private Passenger Automobile Manual given to agents, nor the United Automobile Underwriting Guidelines.
10. Because the definition of the term “business purpose” is never delineated anywhere by United Automobile in the insurance policy, nor in any other document provided to the insured or their agent, the term is an undefined term subject to differing interpretations.
11. Florida courts have held that when an operative term is “subject to differing interpretations, the term should be construed liberally in favor of the insured and strictly against the insurer.” Container Corp. of America vs. Maryland Cas. Co., 707 So. 2d 733, at 736 (Fla. 1998). Florida law is also clear that “exclusionary provisions which are ambiguous or otherwise susceptible to more than one meaning must be construed in favor of the insured, since it is the insurer who usually drafts the policy.” State Farm Mutual Automobile Insurance Company vs. Pridgen, 498 So. 2d 1245 (Fla. 1986). See also, Flores vs. Allstate Ins. Co., 819 So. 2d 740 (Fla. 2002), Auto-Owners Ins. Co. vs. Anderson, 756 So. 2d 29 (Fla. 2000).
12. Defendant, United Auto, cannot exclude Julio and Luz Hincapie from coverage based on an undefined, ambiguous exclusionary clause, and therefore Plaintiff’s Motion to Strike the Affirmative Defense of Material Misrepresentation is hereby GRANTED.
It is therefore, CONSIDERED, ORDERED and ADJUDGED that Final Judgment is hereby entered in favor of the Plaintiff, and Plaintiff shall recover the amount of $5,985.60 in benefits, $1,735.81 in interest, for a total recovery of $7,721.41, for services rendered to Julio Hincapie, and $4,508.00 in benefits and $1,307.32 in interest, for a total recovery of $5,815.32 for services rendered to Luz Hincapie, and as the prevailing party in this matter, Plaintiff’s counsel is entitled to attorney’s fees and costs under Fla. Stat. 627.428 in an amount to be determined at a later hearing.
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