14 Fla. L. Weekly Supp. 189b
Insurance — Personal injury protection — Application — Misrepresentations — Where insurer did not refund premium, insurer had ability to investigate application for defects at any time after application was completed but chose not to do so, and insurer failed to disclose or allege misrepresentation defense until after claim had already been denied defeats, partial summary judgment on material misrepresentation defense is granted in favor of medical provider — Insurer’s responses to interrogatories cannot be considered in opposition to motion for summary judgment where responses were never filed with court or identified as summary judgment evidence
MARTINEZ CHIROPRACTIC CENTER, INC., (Rodney Kissoonlal, Claimant), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-04481 CONO (70). November 21, 2006. Steven P. Deluca, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Catherine Massard, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON MATERIAL MISREPRESENTATION DEFENSE
THIS CAUSE having come before the undersigned upon the Plaintiff’s Motion for Partial Summary Judgment on Defendant’s Material Misrepresentation Defense. The court having reviewed the Motion and the entire court file, heard the arguments, reviewed relevant legal authorities, and been sufficiently advised on the premises, it is hereupon:
ORDERED AND ADJUDGED as follows:
1. The above styled cause of action arises out of a personal injury protection matter filed by the Plaintiff on November 21, 2005.
2. On or about September 19, 2006 Plaintiff filed its Motion for Summary Judgment.
3. On October 30, 2006, this Court heard Plaintiff’s Motion for Summary Judgment regarding Defendant’s second Affirmative Defense which states, “the policyholder submitted material misrepresentations on his/her application for insurance in that he/she failed to disclose and list all residents of his/her household, specifically Rodney Kissoonlal as required by the insurance application. As a result the policyholder is in violation of Florida Statute section 627.409, and has breached the express terms of the insurance contract. Defendant states that the misrepresentations created an additional premium and that if Defendant had been aware of these material misrepresentations at the time the insurance application was submitted, Defendant would not have, in good faith issued the subject insurance policy at all or would not have issued it at the same premium rate. As such, the contract lacks mutual assent, and the insurance policy at issue was void from its inception.”
4. Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits conclusively show that there remain no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law according to Fla. R. Civ. P. 1.510.
5. The burden is on the moving party to establish the non-existence of any genuine issue of material fact. Romero v. All Claims Insurance Repairs, Inc., 698 So.2d 605 (Fla. 3rd DCA 1997). In determining that no issue of material fact exists, the trial court may rely upon exhibits, affidavits, and pleadings on file. Mack v. Commercial Industrial Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989).
6. Once the movant tenders competent evidence to support the motion, the party against whom judgment is sought must present contrary evidence to reveal a genuine issue.
7. It is not enough for the opposing summary judgment merely to assert that an issue exists. Buitrago v. Rohr, 672 So. 2d 646 (Fla. 4th DCA 1996).
8. “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).
9. According to Fla. Stat. 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.”
10. Plaintiff’s attorney deposed the litigation adjuster for the instant case on July 25, 2006. When asked whether the premium had been refunded, the litigation adjuster stated, “no. . .” (Khayoum Depo at p.23-24.)
11. In Miami Chiropractic Associates v. United Automobile Insurance Company, United discovered, after the insured made the claim, that the insurer had failed to list a household member on the application. 13 Fla. L. Weekly Supp. 94a (2005). United then raised this as a defense when the insured’s provider sued United to recover unpaid PIP benefits. The court in this case granted the Plaintiff summary judgment on the basis that United may not escape liability on the grounds that the policy did not exist. The circumstances of Miami Chiropractic Associates, are analogous to the case at bar, in that Defendant United is again attempting to escape liability by asserting the policy is void ab initio.
12. “To permit an insurer to retain the right of rescission and postpone its investigation of the applicant’s insurability until the insurer’s financial interests are at stake defeats the purpose of the Florida Financial Responsibility Law §324.011 et seq., and permits the insurer to retain premiums and avoid all risk on the policy.” Id.
13. In Miami Chiropractic, the court asks, “Why did [Defendant] UNITED postpone its investigation of the applicant’s insurability until after the loss? A routine investigation before the loss or during the underwriting of the risk would likely reveal an unlisted household member is licensed.” Id.
14. In the instant case, Defendant became aware of the alleged defect in Claimant’s application by running a stateline check. (Khayoum Depo at p. 23). Defendant chose not to run this check prior to issuing the policy, or at any time before the commencement of litigation. Instead, Defendant waited until the start of litigation to run the check. In short, this defense to payment was neither disclosed nor alleged until after the claim had already been denied.
15. Defendant had not sent notice to either its insured Claimant that the policy was cancelled, nor did Defendant refund the premium for this policy as required.
16. During the Summary Judgment hearing, Defendant attempted to rely on its responses to Plaintiff’s Interrogatories which were never filed with the court nor identified as summary judgment evidence as required by Fla. R. Civ. P. 1.510(c).
17. According to Fla. R. Civ. P. 1.510(c), “the adverse party shall identify. . .to the movant’s attorney. . .any summary judgment evidence on which the adverse party relies.” Said interrogatories cannot be considered by the Court in opposition to Plaintiff’s Motion for Summary Judgment pursuant to this Rule.
18. Moreover, Defendant never filed a certified copy of its policy, sworn affidavits, or any evidence whatsoever in opposition to Plaintiff’s Motion for Summary Judgment.
19. Since Defendant, UNITED AUTOMOBILE INSURANCE COMPANY did not refund the premium, since Defendant had the ability to investigate the application for defects at any time after the application was completed in December of 2003 but chose not to do so, and since the “after the fact” allegation of this defense defeats the purpose of Florida Financial Responsibility Law, this court concludes that there is no genuine issue of material fact with regards to Defendant’s Second Affirmative Defense claiming material misrepresentation.
Accordingly, it is hereby:
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Summary Judgment is GRANTED with respect to Defendant’s Second Affirmative Defense.
