13 Fla. L. Weekly Supp. 1221a
Insurance — Personal injury protection — Application — Material misrepresentations — Where insurer denied coverage for claimant who was injured while driving insured’s vehicle based on insured’s failure to disclose in insurance application that claimant resided with insured, insurer did not waive right to deny coverage to claimant by failing to return premium to insured because materially false statement or omission resulted in denial of coverage only for risk never assumed by insurer or paid for by insured, not entirety of coverage
ALYX GOMEZ, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-2005-CC016286XXXXSB. September 13, 2006. Debra Moses Stephens, Judge. Counsel: Steven N. Ainbinder, Law Offices of Steven N. Ainbinder, P.A., Boca Raton, for Plaintiff. Dena Sisk Foman, Vernis and Bowling of Palm Beach, P.A., North Palm Beach.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
The above captioned case came on to be heard by the Court, pursuant to the Motion of the Plaintiff, ALYX GOMEZ, for Partial Summary Judgment as to Defendant’s, PROGRESSIVE AMERICAN INSURANCE COMPANY, Seventh (7th) Affirmative Defense to Plaintiff’s Complaint for Personal Injury Protection Benefits. The Court, having heard argument by counsel for the respective parties involved herein, having considered the statutory and case law, the various memoranda of law submitted by the parties, and having examined the record evidence, finds that, based upon the authority of Martinez v. General Insurance Company, 483 So.2d 892 (Fla. 3rd DCA, 1986), Plaintiff, ALYX GOMEZ, Motion for Partial Summary Judgment, as to Defendant’s, PROGRESSIVE AMERICAN INSURANCE COMPANY, Seventh (7th) Affirmative Defense to Plaintiff’s Complaint for Personal Injury Protection Benefits, is hereby DENIED. The Court finds that:
1. This lawsuit stems from the nonpayment of certain Personal Injury Protection (P.I.P.), medical benefits, submitted to the Defendant by the Plaintiff, as a result of a motor vehicle collision which occurred on June 16, 2005. The Plaintiff, while operating an automobile insured by the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY and owned by its insured, Winona Doyer, was involved in a motor vehicle collision. As a result of said motor vehicle collision, the Plaintiff, ALYX GOMEZ, received medical treatment for injuries he sustained in said collision and submitted same for payment with the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY.
2. The Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, through an insurance policy purchased by Winona Doyer, provided personal injury protection insurance coverage to Mr. Gomez, subject to the terms, conditions, endorsements and/or exclusions of said policy, which was in full force and effect when the motor vehicle collision in which ALYX GOMEZ was involved occurred.
3. During its investigation, the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, denied coverage for the above referenced claim, pursuant to Section 627.409, Florida Statutes, due to an alleged material misrepresentation in the insurance application of Winona Doyer. Specifically, the Defendant contends that its insured, Winona Doyer, failed to disclose that the Plaintiff, ALYX GOMEZ, resided with her, at the time she executed an insurance application with said Defendant. The Defendant has alleged that had it known of this alleged fact, it would not have issued the insurance policy at the same premium rate.
4. The Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, in an affidavit, testified that had PROGRESSIVE known that ALYX GOMEZ resided with Winona Doyer, at the time she completed her insurance application, Ms. Doyer’s insurance premium would have increased thirty-nine (39%) percent.
5. Section 627.409, Florida Statutes, states, (in relevant part) that all statements in any application for an insurance policy shall be deemed to be representations and warranties. Misrepresentations, omissions, concealment facts and incorrect statements shall not prevent a recovery under the policy, unless the insurer in good faith, would not have issued said policy at the same premium rate.
6. In, Martinez v. General Insurance Company, 483 So.2d 892, (Fla. 3rd DCA, 1986),the Third District of Court of Appeals adopted, Dairyland Insurance Company v. Kammerer, 317 N.W.2d 618 (1982), which held that, when learning of the alleged [material misrepresentation in an insurance application], the insurer has two choices. Either it could, because of the alleged fraudulent statements made to it, cancel the policy from its inception and return to the insured the entire premium, on the theory that the policy never came into existence, or it could waive the alleged [material misrepresentation], keep the premium earned and accept responsibility under the policy.
7. The Plaintiff, ALYX GOMEZ, presented evidence that the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, failed to return any portion of the insurance premium to its insured, Winona Doyer. Therefore, the Plaintiff, ALYX GOMEX, contended that the Defendant waived its right to deny coverage in this case, pursuant to Section 627.409, Florida Statutes.
8.The facts in Martinez, reflected that the insured, “Ava Martinez, renewed an existing policy of insurance issued by General Insurance Company. At the time of filling out and executing the renewal application, Martinez’s son, Howard Barnes, who had first secured a driver’s license in December, 1983, was living in his mother’s household. Martinez’s application failed to disclose this fact.” Martinez at 893.
9. Barnes, still residing with his mother and driving one of the vehicles listed in the policy, was involved in an accident. General Accident notified Martinez that it was declining coverage for the accident on the ground that the omission of Barnes’ name from the renewal application was material within the meaning of Section 627.409(1), Florida Statutes. The insurance company notified Martinez that it was cancelling her insurance policy and refunded the part of the premium in the policy which would have paid for the insurance, from the date of cancellation until the end of the policy period. Martinez at 893.
10. The attorneys for Martinez, contended that, pursuant to Dairyland Insurance Company v. Kammerer, 317 N.W.2d 618 (1982), General Insurance Company affirmed coverage by failing to refund the entire insurance premium paid from the beginning of the policy period, as opposed to just refunding the unearned premium.
11. The 3rd DCA in Martinez, refused to apply the legal analysis set forth in Dairyland Insurance Company v. Kammerer, to the facts of Martinez, only. The 3rd DCA refusal to apply Dairyland was due to its opinion that factually, the, “omission in question in Kammerer and [in Martinez] did not serve to vitiate [or taint] the policy from its inception for claims unrelated to the omission.”
12. Specifically, the Court in Martinez, noted that the failure of Martinez to list her son on the renewal application precluded coverage only for a claim arising out of Barnes’ driving a vehicle insured under the policy. Mrs. Martinez herself was covered throughout the entire period that the policy was in force, and it is this coverage, and no other, that was acknowledged by the insurer when it retained the premium.
13. The Court in Martinez, did hold that, “where an omission or misrepresentation goes to the entirety of coverage, rescission and return of the premium paid may be a proper remedy.” However, to require the insurer, as the Nebraska rule does, to return the premium to the insured where the materially false statement or omission results, as here, in a denial of coverage only for a risk never assumed by the insured or paid for by the insured, is to give the insured an undeserved windfall-coverage for nothing.” Martinez at 894.
14. In the instant case, the Defendant has denied coverage for the Plaintiff, ALYX GOMEZ, who was allegedly not properly disclosed in the insurance application by its insured, Winona Doyer. Therefore, the Court finds, pursuant to Martinez, that the Defendant was not required to return the insurance premium to the insured, because the materially false statement or omission resulted in a denial of coverage for a risk never assumed by the insurer or paid for by the insured. Had the Defendant been required to return the insurance premium to the insured, it would have given the insured an undeserved windfall-coverage for nothing.
The Court being otherwise fully advised in the premises, it is therefore,
ORDERED AND ADJUDGED that:
1. Based upon the arguments set forth in Plaintiff’s Motion for Partial Summary Judgment and Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Motion for [Partial] Summary Judgment, the motion of the Plaintiff, ALYX GOMEX, for Partial Summary Judgment as to Defendant’s, PROGRESSIVE AMERICAN INSURANCE COMPANY, Seventh (7th) Affirmative Defense to Plaintiff’s Complaint for Personal Injury Protection Benefits, is hereby DENIED.
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