13 Fla. L. Weekly Supp. 1211a
Insurance — Personal injury protection — Application — Misrepresentations — Partial summary judgment is granted in favor of medical provider on issue of material misrepresentation by failure to list all household residents where only evidence on issue is affidavit of insured, which cannot be considered because it is unsworn
BAYVIEW MEDICAL & REHAB CENTER, INC., (a/a/o Felipe Posas), Plaintiff/Petitioner, v. AFFIRMATIVE INSURANCE COMPANY, Defendant/Respondent. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 05-04126, Division I. September 27, 2006. Charlotte W. Anderson, Judge. Counsel: Timothy A. Patrick, Nicholas, Lipscomb & Patrick, P.A., Tampa, for Plaintiff. David Lucey, for Defendant.
AFFIRMED at 16 Fla. L. Weekly Supp. 213c
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on August 21, 2006, on Plaintiff’s Motion For Final Summary Judgment. Present before the court were Plaintiff’s counsel, Timothy A. Patrick, and Defendant’s counsel, David Lucey, Esquire. The court, after considering the evidence presented, hearing argument of counsel and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED as follows:
1. The issue before the court is the Defendant’s affirmative defense of material misrepresentation.
2. In its pleadings, Defendant alleges that its insured, Felipe Posas, committed a material misrepresentation by failing to disclose material facts on his application for insurance, such as business use of his vehicle and listing all household residents, including his wife Melissa Posas, and that she had a suspended license. Defendant asserts that said failure to disclose material facts voids the subject policy from its inception.
3. The court finds that the only record evidence that can be considered by the court is the Affidavit of Felipe Posas.
4. The court finds that an unsworn statement is inadmissible as a matter of law. Thus, the court cannot consider the recorded statement of Felipe Posas as it is unsworn and not under oath.
5. Therefore, as to the issue of material misrepresentation by failing to list all household residents, including his wife Melissa Posas, Partial Summary Judgment is GRANTED to Plaintiff.
6. The court reserves as to the issue of business use as time expired at the hearing.
7. Plaintiff shall re-set this matter, for argument only, as to the issue of business use. No further evidence shall be filed by either party.
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