14 Fla. L. Weekly Supp. 498b
Insurance — Personal injury protection — Application — Material misrepresentations — Business use — Travel to lunch — Insurer’s motion for final summary judgment is denied where examination under oath in which insured admitted that accident occurred while driving to lunch from work is inadmissible and if admissible does not establish absence of genuine issues of fact, insurer has not provided evidence that all premiums were returned to insured, insurer’s motion fails to identify where definition of “business use” is found in documents, insurer failed to present evidence that insured used vehicle for anything related to employment other than to commute to work which is considered personal use, and effect of insurer admitting all admissions in medical provider’s request for admissions is to admit provider’s entitlement to PIP benefits, interest and attorney’s fees
DAMADIAN MRI IN POMPANO BEACH, P.A., d/b/a STAND UP MRI OF FORT LAUDERDALE (Jose Vidal, Patient), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 06-002494 COCE 50. March 13, 2007. Peter B. Skolnik, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Raquel Tapanes, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on February 8, 2007 for hearing of Defendant’s Motion for Final Summary Judgment, the Court having reviewed the Motion and entire Court file; heard argument; reviewed relevant legal authorities; and been sufficiently advised on the premises, the Court finds as follows:
1. On July 7, 2004, Jose Vidal entered into an insurance contract with UNITED AUTOMOBILE INSURANCE CO. for a personal automobile policy.
2. On November 21, 2005, Jose Vidal was involved in an automobile accident in which he sustained injuries.
3. As a result of these injuries, Mr. Vidal sought medical treatment from Mark Richards, D.C., who referred him to the Plaintiff for an MRI on November 22, 2004.
4. Defendant received Plaintiff’s initial claim for payment on February 2, 2005.
5. Defendant failed to either investigate or submit payment for said claim within the 30 day statutory period that is afforded to the insurer. At the expiration of the 30 day statutory period, the Defendant failed to provide an Explanation of Benefits setting forth the reason(s), if any exist, why payment for the Plaintiff’s claim would not be rendered.
6. Defendant first raised the issue of material misrepresentation in their Answer and Affirmative Defenses, filed in response to the Plaintiff’s claim on February 28, 2006, more than one (1) year after Defendant received notice of Plaintiff’s claim.
7. On December 8, 2006, the Defendant filed a Motion for Summary Judgment based on its contention that the patient Jose Vidal, (hereinafter “patient”), submitted a material misrepresentation on his insurance application which voids the insurance policy contract. Defendant bases this contention on an Examination Under Oath obtained by the Defendant on November 10, 2004, in which the Claimant states the accident occurred while he was driving the insured vehicle to lunch from work.
8. Defendant contends in its Motion for Summary Judgment that, because the Claimant was driving the vehicle to lunch from work, such use constitutes a ‘Business Use’ and places the Claimant in violation of several non-Business use clauses contained in the application.
9. Pursuant to Florida Statute §627.736(4)(b),
personal injury protection benefits paid pursuant to this section shall be overdue if not paid within the 30 days after the insurer is furnished with written notice of the fact that of a covered loss and of the amount of the same. . . . When an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge, the insurer shall include the name and address of the person to whom the claimant should respond and a claim number to be referenced in future correspondence.
10. As a result of Defendant’s failure to comply with §627.736(4)(b) as required, Defendant’s actions allowed the patient to continue under the assumption that his insurance was in full force and effect. “United owes a duty to the public to investigate the applicant’s insurability because statutorily mandated coverage is intended to protect the public.” United Automobile Insurance Co. v. Miami Chiropractic Associates, 13 Fla. L. Weekly Supp. 94a (2005).
11. To deny coverage on the basis of a defect in the application for insurance is tantamount to rescinding the contract of insurance. 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,” United Automobile Insurance Company v. Vila, 13 Fla. L. Weekly Supp. 552a (2006). According to Florida Statute §627.7383(2), “If an insurer cancels a policy of motor vehicle insurance, the insurer must mail the unearned portion of any premium within 15 days after the effective date of the policy cancellation.”
12. Defendant has failed to provide any record evidence that the premiums have been returned to the insured.
13. In paragraph #9 of the Defendant’s Motion for Summary Judgment, Defendant refers to the patient’s Examination Under Oath (EUO) in support of its position. The patient attended said EUO on November 10, 2004, yet no notice of this defense was sent to the Plaintiff until after the Defendant filed its Answer and Affirmative Defenses. “It is well established that means of knowledge is equivalent to knowledge, and that a party who has the opportunity of knowing the fraud of which he complains cannot be supine and inactive, and afterwards allege a want of knowledge that arose by reason of his own laches or negligence. Thus if a person has a duty to make inquiry, but unreasonably delays in conducting that inquiry, his negligent omission constitutes laches which bars his defense of fraud.” United Automobile Insurance Co. v. Miami Chiropractic Associates, 13 Fla. L. Weekly Supp. 94a (2005).
14. Furthermore, the Examination Under Oath was not given under oath at a trial, hearing, or other legal proceeding, and it was not subject to cross-examination. Therefore, the EUO Defendant relied upon is inadmissible and this Court should not consider it. See Hollywood Pain Relief Center v. United Automobile Insurance Co., 13 Fla. L. Weekly Supp. 162c (11th Cir. Ct. Jun. 10, 2005). Even if the EUO were admissible, it does not establish the absence of genuine issues of material fact.
15. Defendant attached a series of exhibits A through G, along with its Motion that are not in compliance with the applicable rules. Pursuant to Florida Rule of Civil Procedure 1.510(e), supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Williams v. Henderson, 779 So.2d 450 (Fla. 2nd DCA, 2000); See also Thompson v. Citizens National Bank of Leesburg, 433 So.2d 32 (Fla. 5th DCA, 1983); Geiseke v. Grossman, 418 So.2d 1055, 1057 (Fla. 4th DCA, 1982). Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The following exhibits are attached to the Defendant’s Motion:
a. Exhibit A: Personal Auto Policy, Application and Declarations — This document is neither sworn to nor certified, and therefore should not be considered by this Court.
b. Exhibit B: Affidavit of Jorge De La O — An affidavit must be based on personal knowledge, Williams v. Henderson, 779 So.2d 450 (Fla. 2nd DCA, 2000), see also Thompson v. Citizens National Bank of Leesburg, 433 So.2d 32 (Fla. 5th DCA, 1983). Mr. De La O’s assertion in paragraph 3 of this affidavit, that the insured entered into an insurance contract on or about July 7, 2004, cannot be based on personal knowledge as Mr. De La O was not present at the time. In the Thompson v. Citizens National Bank case (cited supra), the court struck an affidavit, holding that “the affiant did not (nor could he) state that he had personal knowledge of the matters contained in [the company’s] business records, nor that the [business] records were complete or correct and were kept under his supervision and control,” Id. at 451. Additionally, the jurat for this Affidavit is insufficient, as Mr. De La O warrants that the Affidavit is “true and correct to the best of his personal knowledge.” This in no way demonstrates his competence to testify to the matters contained therein.
c. Exhibit C: Non-Business Use Statement and Endorsement — This document is neither sworn to nor certified, and therefore should not be considered by this Court. See Bifulco v. State Farm, 693 So.2d 707 (Fla. 4 DCA, 1997).
d. Exhibit D: Notice of Service of Process, Summons, Complaint — These documents are already part of the Court’s record.
e. Exhibit E: Sworn Statement of Jose F. Vidal, 11/10/04 — This document is inadmissible. Please refer to paragraph 14 of this Order (supra).
f. Exhibit F: Affidavit of Carolina Trivino — This Affidavit is not based on personal knowledge. In paragraph #3, Ms. Trivino states that she is merely familiar with the pending litigation of this case. Furthermore, a litigation adjuster first becomes involved with a claim post-suit and clearly lacks personal knowledge of events that took place prior to the date suit was filed. Ms. Trivino was neither present at the EUO nor at Estrella Insurance Agency when the insured completed the application. As discussed in the analysis of Exhibit B (supra), Ms. Trivino neither stated (nor could she) that she had either personal knowledge nor that the business records whose veracity she purports to affirm were true, correct or kept under her supervision or control. The jurat for this Affidavit suffers from the same defect as the jurat in Exhibit B, as Ms. Trivino warrants that the Affidavit is true and correct to the best of her personal knowledge.
g. Exhibit G: Police Accident Report — Florida’s Accident Report Privilege is codified in Fla. Stat. §316.066, which states that no such report shall be used as evidence in any trial, civil or criminal. See also Dept. of Highway Safety & Motor Vehicles v. Corbin, 527 So.2d 868 (Fla. 1st DCA, 1998). Therefore, this Court should not consider this exhibit.
16. Defendant’s Motion for Summary Judgment fails to elucidate where a definition of the term “business use” may be found, whether in the policy itself, in the adjuster’s handbook, or in any document provided to the insured or their agent.
17. In Advanced Health Services III v. United Automobile Insurance Company, the court held that, because the definition of “business purposes” was never defined by United, “the term is an undefined term subject to differing interpretations,” 13 Fla. L. Weekly Supp. 358a (11th Cir. Ct., Dec. 5, 2005).
18. Florida courts have held that when an operative term is subject to differing interpretations, the term should be construed liberally in favor of the insured and strictly against the insurer, Id. “Exclusionary provisions which are ambiguous or otherwise susceptible to more than one meaning must be construed in favor of the insured, since it is the insurer who usually drafts the policy,” Id. See also State Farm Mutual Automobile Insurance Co. v. Pridgen, 498 So.2d 1245 (Fla. 1986); See also Flores v. Allstate Ins. Co., 819 So.2d 740 (Fla. 2002), Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29 (Fla. 2000).
19. The Advanced Health Services court held that, “Defendant, United Auto, cannot exclude [the claimants] from coverage based on an undefined, ambiguous exclusionary clause,” 13 Fla. L. Weekly Supp. 358a (11th Cir. Ct., Dec. 5, 2005).
20. Defendant provided no record evidence to establish that the claimant used his covered vehicle for anything relating to employment other than to drive to and from work.
21. In Caballero v. Oak Casualty Insurance Company, the court found that, “commuting to and from work is personal use,” 2 Fla. L. Weekly Supp. 578c (11th Cir. Ct. App., Dec. 2, 1994), see also Stanger Health Centers, Inc. v. Vesta Fire Insurance Corp., 14 Fla. L. Weekly Supp. 98b (17th Cir. Ct., Oct. 24, 2006).
22. The Stanger court ultimately held that, since commuting to and from work is considered personal use, the claimant did not commit material misrepresentation in connection with the policy of insurance.
23. Additionally, Defendant failed to timely respond to Plaintiff’s Request For Admissions, which resulted in the admissions being deemed admitted in accordance with Florida Rule of Civil Procedure 1.370(a). This Court denied the Defendant’s Motion for Relief from Technical Admissions on November 29, 2006.
24. Florida Rule of Civil Procedure 1.370(a) states, “the matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request or such shorter or longer time as the court may allow.” Id.
25. The effect of admitting all the admissions in Plaintiff’s Request is tantamount to admitting the Plaintiff is entitled to the relief sought in the Complaint, specifically — the PIP benefits, interest and attorney’s fees.
26. For the reasons set forth herein, this Court finds that the Defendant has failed to meet its burden of proof in that it has not established that no genuine issue of material fact exists.
Accordingly, it is ORDERED and ADJUDGED, the Defendant’s Motion for Final Summary Judgment is hereby denied.
