13 Fla. L. Weekly Supp. 796c
Insurance — Personal injury protection — Misrepresentations — Claims investigation — Where PIP policy excludes coverage “if you or insured person has concealed or misrepresented any material fact or circumstance or engaged in fraudulent conduct in connection with presentation or settlement of claim,” statute in effect at time of loss gave insurers discretion to exclude coverage for misrepresentation or fraud, and insured made misrepresentations during investigation of claim of person injured while repairing insured’s vehicle in insured’s garage, insurer was not obligated to cover claim despite fact that injured claimant did not make misrepresentations and misrepresentations occurred during investigation of claim
QUASHED. 32 Fla. L. Weekly D363a.
ERNESTO VASQUES, Appellant, vs. MERCURY CASUALTY COMPANY, a corporation authorized and doing business in the State of Florida, Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 05-15-AP. April 21, 2006. Appeal from the County Court for Seminole County, Honorable Mark E. Herr, County Court Judge. Counsel: Jamie Billotte Moses, Orlando, for Appellant. Randall A. Wainoris, Haas, Dutton, Blackburn, Lewis & Longley, P.A., Tampa, for Appellee.
(C. SIMMONS, J.) Ernesto Vasques appeals a Final Summary Judgment for Mercury Casualty Company [12 Fla. L. Weekly Supp. 399a]. This Court affirms.
On December 29, 2001, Ernesto Vasques was injured while repairing the car belonging to George Shehata in Mr. Shehata’s garage. The injury involved several broken fingers and a partially severed finger. Mr. Vasques filed a claim with Mercury Insurance, under the Personal Injury Protection portion of Mr. Shehata’s policy.
Mr. Shehata and his mother, Maida Shehata, initially denied any knowledge of the incident during Mercury’s investigation of the claim. It was subsequently determined that they had made false statements out of fear of liability for the accident.
Because the insureds made material misrepresentations and/or intentional false statements, Mercury denied coverage under Section 10 of the policy, which permits the insurer to deny coverage in instances involving such fraud and misrepresentation. Mr. Vasques filed suit against Mercury to cover the claim.
The interpretation of an insurance contract is subject to de novo review. State Farm Mut. Auto. Ins. Co. v. Parrish, 873 So.2d 547, 549 (Fla. 5th DCA 2004). Likewise, the standard of review of a summary judgment is also de novo. Volusia County v. Aberdeen at Ormond Beach, L P, 760 So.2d 126, 130 (Fla. 2000).
Appellant makes three arguments in favor of why summary judgment was incorrect : (1) he did not make the misrepresentations or fraudulent statements, and alternatively the policy language is ambiguous and should be interpreted in favor of coverage; (2) Florida’s “innocent insured” doctrine requires coverage; and (3) Florida’s “no fault” law requires coverage.
There are no allegations that Mr. Vasques made fraudulent statements. The policy language clearly and unambiguously states that Mercury “may deny coverage of an accident or loss if you or an insured person has concealed or misrepresented any material fact or circumstance, or engaged in fraudulent conduct, in connection with the presentation or settlement of a claim.” Appellant contends that because the fraudulent statements occurred during the investigation of the claim, and not the presentation or settlement of the claim, that he is entitled to coverage.
Appellant cites Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082 (Fla. 2005), as authority for resolving an ambiguity in favor of coverage, stating that if the salient policy language is acceptable to two reasonable interpretations, one providing coverage and the other excluding coverage, the policy is considered ambiguous, and should be construed liberally in favor of the insured. Fayad, 899 So.2d at 1086. This Court believes that Appellant’s interpretation of the language is not reasonable.
Appellant cites Everglades Marina, Inc. v. American Eastern Dev. Corp., 374 So.2d 517 (Fla. 1979); Overton v. Progressive Ins. Co., 585 So.2d 445 (Fla. 4th DCA 1991); and Auto-Owners Ins. Co. v. Eddinger, 366 So.2d 123 (Fla. 2d DCA 1979) as standing for the proposition that fraud committed by a co-insured does not void the coverage of the innocent co-insured unless clearly stated by the policy in question. This argument fails on two counts.
First, the above-cited line of cases refers to co-insureds‘ ability to recover when another co-insured commits fraud. In this case, Mr. Vasques is not a co-insured, but at best, a third-party beneficiary.
Second, the policy clearly excludes coverage when “you or an insured person” is responsible for the fraud. Appellant relies again on the failed argument above that this language is ambiguous; claiming that “the policy strongly suggests that if the insured presenting or settling the claim does not commit a fraudulent act or engage in concealment or misrepresentation, that insured would be entitled to coverage under the policy.” While Appellant’s statement is facially correct, is does not reflect the situation at hand — a situation in which the insured did commit the concealment and misrepresentation. Read in conjunction with the “in connection with” language above, coverage is specifically excluded in a case such as this.
At the time the accident occurred, Appellant argues that Florida’s Personal Injury Protection (PIP) statute did not have an exception for fraud committed by one seeking coverage. This provision is currently found in section 627.736(4)(g), which was not in effect at the time this incident occurred. However, the statute as of 2001 did not specifically prohibit insurance companies from excluding coverage in circumstances involving fraud or misrepresentation. In fact, a careful reading of the 2001 statute results in two provisions that can reasonably be construed to give insurance companies this kind of discretion.
Section 627.736(4)(1) states that “benefits due from an insurer. . . shall be due and payable as loss accrues, upon reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued under §627.730-627.7405.” (emphasis added). As the policy clearly and unambiguously excludes coverage for instances of fraud or misrepresentation, it follows that Mercury is not obligated under the PIP statute to cover this loss.
Additionally, section 627.736(4)(b) states that “any payment shall not be deemed as overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment.” Again, Mercury had reasonable proof of the fraudulent misrepresentations, which was sufficient to establish that they were not responsible for the payment.
ACCORDINGLY the Final Summary Judgment is AFFIRMED.
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