13 Fla. L. Weekly Supp. 552a
Insurance — Personal injury protection — Rescission of policy — Misrepresentations — Waiver — No error in concluding that insurer could not use defense of material misrepresentation to rescind PIP policy because it had waived defense where insurer had not returned paid premiums by date of summary judgment hearing
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. MERCEDES VILA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-237 AP. L.C. Case No. 2003000648 SP 25. March 15, 2006. An Appeal from the County Court for Miami-Dade County, Mercedes A. Bach, Judge. Counsel: Michael Neimand, Office of General Counsel, United Automobile Insurance Company, for Appellant. Christian Carrazana, for Appellee.
(Before MUIR, WILSON, JR., and COHEN LANDO, JJ.)
(WILSON, JR., Judge.) Appellant/defendant, United Automobile Insurance Co., contests the grant of summary judgment in favor of appellee/plaintiff, Mercedes Vila. The summary judgment order established that appellant/defendant could not use the defense of material misrepresentation to rescind the PIP policy at issue because it had waived that defense (it was estopped from asserting the defense). Essentially, the trial court held that appellant/defendant waived the defense by not timely returning the paid premiums to the appellee/plaintiff. The supposed material misrepresentation concerned the ostensible misrepresentation by a co-insured as to where the vehicle involved in the instant litigation was garaged. Appellant/defendant claims this alleged misrepresentation was material according to § 627.409, Fla. Stat. (2001), since this would have 1) changed the premium it would have charged appellee/plaintiff; 2) it would not have in good faith issued the insurance policy; 3) it would not have issued a policy in as large an amount; and/or 4) it would not have provided coverage with respect to the hazard resulting in the alleged loss.
The standard of review concerning a trial court’s order granting summary judgment is de novo. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). The reviewing court must determine whether there is a genuine issue of material fact and whether the trial court applied the correct rule of law. Volusia County v. Aberdeen at Ormand Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). The trial court’s order under review is clothed with the presumption of correctness and the burden is on an appellant to demonstrate error. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). The trial court’s order granting summary judgment, moreover, is entitled to the presumption of correctness where the record supports the ruling. Easterling v. Keels, 681 So. 2d 744 (Fla. 3d DCA 1996). Even if the trial court reaches the right result, but for the wrong reasons, the decision must be upheld if there is any basis in the record that would support the judgment. Dade County School Board v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999).
To rescind a voidable insurance policy, an insurer must return all premiums paid by the insured as a condition precedent to invoke the right of rescission. See Bankers v. Gen. No-Fault Ins., Inc., 814 So. 2d 1119, 1120 (Fla. 4th DCA 2002) (citing Leonardo v. State Farm Fire and Cas. Co., 675 So. 2d 176, 179 (Fla. 4th DCA 1996)).
The elements of waiver are: (1) the existence at the time of the waiver of a right, privilege, advantage, or benefit which may be waived; (2) the actual or constructive knowledge of the right; and (3) the intention to relinquish the right. Leonardo, 675 So. 2d at 178. Leonardo also notes that the trier of fact should consider and determine various factors on a case-by-case basis when it decides whether waiver has occurred, including whether the premium was returned within a reasonable time after the payment came to the attention of responsible officials of the insurer. Id. at 178 n.1. Although the issue in Leonardo concerned a contested issue of material fact as to whether the insurance company had rescinded the insured’s policy by the continued billing and acceptance of premiums, the principles of waiver remain the same. The decision is made on a case-by-case basis considering attendant facts and circumstances. In the instant case, there is not even an issue of the reasonableness of the time of return of the premiums; the appellant/defendant had not returned them by the date of the appellee/plaintiff’s summary judgment hearing. Under the circumstances, the trial court certainly could conclude that appellant/defendant waived the defense.
Evidence in the record supports the trial court’s decision when viewed in the light of the insurer’s failure to return the paid insurance premiums. See Easterling, 681 So. 2d at 744. Appellant/defendant never demonstrated error in the trial court’s ruling concerning waiver. See Applegate, 377 So. 2d at 1152. Without the ability to assert the defense, no contested issue of material fact remained to prevent the grant of appellee/plaintiff’s motion for summary judgment. The trial court based its decision on the correct rule of law. This Court cannot disturb its ruling. Accordingly, the trial court’s summary judgment decision is AFFIRMED.
Appellee’s motion for attorney’s fees is GRANTED. Amount to be determined by the trial judge. (MUIR and COHEN LANDO, JJ., concur.)
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