14 Fla. L. Weekly Supp. 134a
Insurance — Personal injury protection — Application — Misrepre-sentations — Error to grant summary judgment in favor of insurer on affirmative defense of material misrepresentation by listing as unlicensed a spouse who had restricted driver’s license where policy’s failure to define “driver’s license” created issue of material fact as to interpretation of term — Although trial court denied motion to amend original answer and affirmative defenses, which asserted defense of misrepresentation by failure to list all household residents, to assert misrepresentation by failure to disclose spouse’s licensure, because denial of motion to amend was without prejudice, court was within its right to reconsider and allow amended affirmative defense in considering motion for summary judgment
MIAMI SPINE & REHAB, INC. (a/a/o Mario Fernandez), Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 06-009 AP. L.C. Case No. 02-007669 SP 25. December 14, 2006. On appeal from the County Court, Miami-Dade County, Graham, Wendell M., J. Counsel: Marlene S. Reiss of Stephens Lynn, Klein, La Cava, Hoffman & Puya, for Appellant. Angelica D. Zayas of Office of the General Counsel for United Automobile Insurance Company, for Appellee.
(Before ROTHENBERG, MUIR, WILSON, JJ.)
(WILSON, Judge.) This is an appeal of a county court order granting summary judgment in favor of the Appellee, United Automobile Insurance Company (“United Auto”). Mario Fernandez, the insured, was injured in a motor vehicle accident and alleged that he sustained injuries which required medical treatment. Thereafter, Mr. Fernandez assigned his rights to receive payment for his medical treatment to Miami Spine & Rehab, Inc. (“Miami Spine”), the Appellant. Miami Spine submitted its medical bills to the United Auto. However, United Auto did not submit payment for the medical bills. As a result, Miami Spine, filed suit against United Auto, for failure to pay Personal Injury Protection [“PIP”] benefits under §627.736(4)(b), Fla. Stat. (2002). Before the trial’s inception, United Auto renewed its Motion for Summary Judgment based on its affirmative defense material misrepresentation since the insured failed to list all the residents of his household on the insurance application. More specifically it argued that the insured listed his wife as unlicensed on the insurance application when she was indeed licensed. Despite Miami Spine’s objection, the trial court granted United Auto’s motion. Thereafter, this appeal ensued.
The standard of review for a lower court’s order granting summary judgment is de novo. Lander v. Smith, 906 So. 2d 1130, 1132 (Fla. 4th DCA 2005). To analyze summary judgment properly this court must determine (1) whether there is a genuine issue of material fact, and (2) whether the trial court applied the correct rule of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); see also Philip J. Padovano, Florida Appellate Practice, Vol. 2, §9.4, pp. 163-164 (2006 ed., West 2005).
The first prong of summary judgment review requires this court to determine whether there exists a genuine issue of material fact. This court believes that the record reveals a material dispute. The insurance application requested the insured to list the drivers’ license number(s) for each household resident. However, the insured listed ‘none‘ by his spouse’s name when she was indeed a licensed restricted driver since 1996 or 1997.
United Auto contends that this was a material misrepresentation because knowledge of the spouse’s license would have increased the insurance premium by $166.00. However, Miami Spine insists that the material misrepresentation is innocent since both parties dispute the interpretation of the term ‘driver’s license.’ Miami Spine believes that the term ‘driver’s license’ does not include a person with a restricted driver’s license. Not to mention, Miami Spine argues that the insurance policy is ambiguous since it does not define ‘license.’
In support of its defense Miami Spine advances General Insurance Company v. Ramanovski, 443 So. 2d 302 (Fla. 3d DCA 1983). Moreover, it asserts that a restricted driver’s license is used for identification purposes only, not for driving. United Auto argues that a driver’s license, whether restricted or regular, serves as a privilege to drive and that state i.d.’s are used asidentification cards.
In Ramanovski, the court held that material misrepresentation of the insured’s omission of his son’s name as a ‘driver’ on an insurance renewal application was innocent, because the insurance agent told the insured that the word ‘driver’ did not include a driver with a restricted driver’s license. Since an insurance agent’s knowledge is imputed to the insurance company the court charged the agent’s knowledge of the son’s restricted driver’s license to the insurance company. Thus, the agent’s interpretation of the term ‘driver’ created the ambiguity as a matter of law on the part of the insurance company. Id. at 304.
The critical factor in Ramanovski was the insurance agent’s statement which created the ambiguity. That factor was not present in the instant case. Therefore, we find that Ramanovski is inapplicable to this set of facts. However, Ramanovski’s inapplicability does not vitiate the fact that United Auto’s policy failure to define ‘driver’s license’ creates a material fact as to each party’s interpretation of this term. Thus, summary judgment was inappropriate in this instance, since this material issue of fact should have been decided by a jury. Therefore, we reverse.
Miami Spine also asserts that United Auto argued a defense which was not previously pled. At the hearing on the motion for summary judgment, United Auto argued that failure to list all household residents as requested by the insurance application included the fact that the insured misrepresented that his spouse did not possess a driver’s license. Miami Spine balks at this argument because it believes that United Auto is pleading a new argument which was not pled in its original answer and affirmative defenses. It asserts that Florida law has held that a party may not prove or claim a defense that was never pled. Arky, Freed, et al. v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla. 1989). In opposition, United Auto argues that its use of its general affirmative defense ‘failed to list all residents of his household as requested by the insurance application’ was inclusive of the fact that the insured listed that his wife was unlicensed.
A review of the records indicates that United Auto filed a ‘Motion to File Amended Answer’ on September 23, 2005. It amended its affirmative defense to state ‘the policy holder submitted material misrepresentations on his application for insurance, in that he failed to list all residents of his household as requested by the insurance application, but for which Defendant would not have, in good faith, issued the subject insurance policy, would not have issued it at the same premium rate, would not have issued a policy of contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the alleged loss. . .’
Then, on October 14, 2005, United Auto submitted another ‘Amended Motion to File First Amended Answer.’ For its affirmative defense United Auto listed that ‘the policy holder submitted material misrepresentations on his application for insurance, in that he failed to disclose that his wife possessed a driver’s license, as requested by the insurance application, but for which Defendant would not have, in good faith, issued the subject insurance policy, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would have provided coverage with respect to the hazard resulting in the alleged loss. . .’.
Both parties conceded that the Amended Answer and Affirmative Defenses were denied without prejudice. Yet, the lower court decided to consider the issue before the trial’s inception. The lower court was within its right to allow the amended affirmative defense since Florida law is well settled that a court is not precluded from considering a previous disposition expressly effected without prejudice. Markow v. American Bay Colony, 478 So. 2d 413 (Fla. 3d DCA 1985). Therefore, the court need not consider this issue.
Since there exists a genuine issue of material fact this court need not consider the second prong of summary judgment review, whether the lower court applied the correct rule of law. Volusia County, 760 So. 2d at 130.
If Miami Spine prevails upon remand, then it will be entitled to trial and appellate attorney’s fees and costs pursuant to §627.428, Fla. Stat. (2002).
FOR THESE REASONS, the summary judgment in favor of the Appellee is REVERSED, and this cause is REMANDED to the trial court for further proceedings consistent with this opinion. (ROTHENBERG, MUIR, JJ. concur.)
