13 Fla. L. Weekly Supp. 1205c
Insurance — Automobile — Discovery — Fraud on court — Sanctions — Dismissal — Where throughout discovery insured misrepresented, omitted, and fraudulently concealed fact that she and person driving vehicle at time of accident were living together at time of application for insurance, and concealed fact goes to critical issue of household residents and excluded drivers, insured engaged in calculated attempt to perpetrate fraud on court and subverted justice to extent that there is no remedy other than dismissal with prejudice
JULIE SPENT-UNDERWOOD, Plaintiff, v. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 10th Judicial Circuit in and for Polk County, Civil Action. Case No. 53-2004CC-000548. September 6, 2006. Steven L. Selph, Judge. Counsel: Julie Spent-Underwood, pro se. Paul A. Bernardini, Jr., Law Office of Thomas E. O’Hara, Clearwater, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FOR FRAUD ON THE COURT
THIS CAUSE coming before the Court on this 28th day of August, 2006, upon the Defendant’s Motion to Dismiss for Fraud and the plaintiff after being duly noticed and the defendant being represented by counsel, the Court makes the following findings of fact and conclusions of law:
This is a declaratory action for motor vehicle insurance benefits to the plaintiff, Julie Spent-Underwood. On February 14, 2003, the plaintiff had applied for an automobile insurance policy (Policy) with the Defendant. The plaintiff was the only named driver, declaring she lived with her children. The plaintiff’s motor vehicle (“Pickup”) was severely damaged in an accident that occurred on May 20, 2003, in Brandon, Florida. The Pickup was driven by the plaintiff’s boyfriend, Michael Barry (Mr. Barry).
At issue in this case is whether or not Mr. Barry, was, in fact, residing with the Plaintiff at the time of the policy application. If Mr. Barry was not living with the insured at the time of the Application, the defendant admits this would be a covered loss. If, however, Mr. Barry was living with the insured at the time of the Application, then there would be no coverage for the loss, for failing to disclose a household resident/potential driver. The defendant would have either not issued the Policy, or would have issued it at a higher premium had they known that Mr. Barry was residing at the household. In other words, this particular driver was “material to the risk” within the meaning of F.S. 629.409.
The plaintiff had stated on her application, at the time the claim was made and throughout discovery that Mr. Barry was not residing with her on the day of the Application at her home at 2335 Towering Oaks Circle, Seffner, Florida (“subject residence”). Acting on her behalf, Mr. Barry, also denied living with her in a recorded statement given to the Defendant.
Thus, this is the only factual issue in the case and the defendant attempted to conduct discovery on this. The plaintiff has given sworn testimony that Mr. Barry was not living with her but was only a friend who had helped her move. They are now married.
However, discovery has revealed that the Plaintiff and Mr. Barry have misrepresented, omitted and/or fraudulently concealed that they were living together at the time of the Application. The Defendant had propounded subpoenas to various non-party entities with mixed results. The cable service provider had filed a motion for a protective order.
Through various public information inquiries, the Defendant was able to show that the excluded driver, was in fact residing with the Plaintiff on the day of the Application. According to The State of Florida, Division of Highway Safety and Motor Vehicles (DHSMV), he was living at the subject residence. One week prior to the Application, Mr. Barry had applied for a Certificate of Title for a used pickup, listing his address at the subject residence. This is also reflected in a DHSMV form “HSMV 82041”. There is also a Certificate of Lien Satisfaction, reflecting the same information.
On the same day plaintiff had executed the Application with Mercury, Mr. Barry had taken out a different insurance policy with another carrier for his personal vehicle, tending to prove this was not a mere oversight on the part of the Plaintiff. Mr. Barry is the policy holder and his address, again, is at the subject residence. The power bill is also in Mr. Barry’s name listing his home at the subject residence. And finally, Mr. Barry is a registered sexual offender and his registered address as of the date the Application was at the subject residence.
Normally, factual disputes such as this are to be resolved by the fact finder. However, given that the only factual issue in this case is whether or not Mr. Barry was living at the residence at the time of the Application, the plaintiff’s misrepresentations throughout discovery go to the heart of the matter. Because the plaintiff has fraudulently concealed a fact that goes to the heart of the matter, she has subverted the integrity of the judicial process. The false statements have been designed and calculated to thwart and hinder discovery of a central issue in the case. Because of this, there can be no fair determination of the truth by the jury or fact finder.
It is well settled that a party who has been guilty of fraud or misconduct in the prosecution or defense of a civil proceeding should not be permitted to continue to employ the very institution it has subverted to achieve her ends. Hanono v. Murphy, 723 So.2d 892, 895 (Fla. 3d DCA 1998).
The Court finds that the plaintiff has engaged in a calculated attempt to perpetrate a fraud upon this Court; that her actions throughout have been designed, willful and contumacious with respect to her intentional failure and refusal to disclose critical information with respect to household residents and excluded drivers. The plaintiff subverted the justice of this process to the extent that there can be no remedy other than a dismissal of this cause with prejudice.
ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss for Fraud is GRANTED WITH PREJUDICE.
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FINAL JUDGMENT
THIS CAUSE came on to be heard on Monday, August 28, 2006, upon the Defendant’s Motion to Dismiss for Fraud on the Court, and after having heard argument of counsel and being otherwise fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED that Plaintiff, JULIE SPENT-UNDERWOOD, shall take nothing by this action and that the Defendant, MERCURY INSURANCE COMPANY OF FLORIDA, go hence without day.
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