13 Fla. L. Weekly Supp. 500a
Insurance — Personal injury protection — Misrepresentation — Rescission of policy — Insurer’s common law right to rescind PIP coverage is abrogated by statute — Notice of cancellation for material misrepresentation on policy application was defective and did not comply with statute where effective date of cancellation was the policy inception date — Insurer is statutorily required to report cancellation or non-renewal of PIP coverage to Department of Highway Safety and Motor Vehicles within 45 days from effective date of cancellation or non-renewal — Insurer is liable on policy for reasonable, related and necessary medical expenses
OSCAR SALGADO JR., Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County, Civil Division. Case No. 04-1454 CC 24 (1). February 3, 2006. Ada Pozo Revilla, Judge. Counsel: Christian Carrazana, Panter, Panter & Sampedro, P.A., Miami, for Plaintiff. Chastity Perez, Office of General Counsel, for Defendant.
[Editor’s note: Circuit court order affirming decree (14 Fla. L. Weekly Supp. 362a) QUASHED at 34 Fla. L. Weekly 1578a. Remanded with instructions to enter judgment in favor of insurer.]
FINAL DECLARATORY DECREE
THIS ACTION came before this Court on Plaintiff’s motion for final summary judgment on December 23rd, 2005 and upon granting Plaintiff’s motion, it is hereby ADJUDGED that
1. At all times material, Plaintiff was insured for personal injury protection benefits by Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, under a policy of insurance required by §§ 627.730-7405, Florida Statutes, (2003); the policy effective dates is December 18th, 2003 though December 18th, 2004.
2. Sections 627.730-7405, Florida Statutes, (2003) when viewed in pari materia with § 627.728, Florida Statutes, (2003) are in derogation of Defendant’s common law right to unilaterally rescind personal injury protection coverage for material misrepresentation; as such, Defendant’s common law right to rescind personal injury protection coverage is abrogated by the Florida Statutes. See also Miami Chiropractic Assoc’ Inc., as assignee of George Brice, v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 94a (Fla. 11th Jud. Cir. Cty. Ct. 2005); Miami Chiropractic Assoc’ Inc., as assignee of Yvrose Perpignan v. United Auto. Ins. Co., Case No.: 03-3942 CC 25 (2) (Fla. 11th Jud. Cir. Cty. Ct. 2005) [13 Fla. L. Weekly Supp. 273a] final summary judgment rendered January 26th, 2006.
3. Defendant’s notice of cancellation for material misrepresentation, submitted by Defendant on or about May 24th, 2004, is defective and non compliant with § 627.728 because the effective date of cancellation is the policy inception date; i.e., December 18th, 2003.
4. Defendant cannot comply with § 627.736(9)(a), Florida Statutes, (2003) with a flat cancellation notice (i.e., notice of rescission) with the effective date of cancellation as the policy issuance date; Defendant is statutorily required to report cancellation or non renewal of PIP coverage to the Department of Highway Safety Motor Vehicles within forty five (45) days from the effective date of cancellation or non renewal. See § 627.736(9)(a).
5. Said policy of insurance is valid and in full force and effect at the time of the subject automobile accident of January 31st, 2004.
6. The following medical expenses incurred by Plaintiff were reasonable, necessary and related: $5,782.00 from Kendall Regional Medical Center; $184.90 from American Medical Response; $552.00 Inphynet Contracting Serv., Inc. Accordingly, Defendant is liable on the policy for said expenses and for interest under § 627.736(4), Florida Statutes, (2003).
7. The Court shall reserve jurisdiction to award supplemental relief under § 86.061, Florida Statutes, (2003) as may be necessary to afford Plaintiff complete relief.
8. The Court shall reserve jurisdiction to award Plaintiff attorney’s fees & taxable costs pursuant to § 627.428, Florida Statutes, (2003) for prosecution of this action.
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