14 Fla. L. Weekly Supp. 410b
Insurance — Automobile — Application — Misrepresentations — Summary judgment — Factual issues — Where evidence submitted by insurer regarding alleged material misrepresentation of failing to list household resident over age 15 on application does not clearly and conclusively establish that material misrepresentation occurred which affected risk assumed by insurer but, rather, conflicting evidence requires weighing of answers and credibility of witnesses, trial court erred in entering summary judgment in favor of insurer
PATRICK SAMUELS, Appellant, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-427 AP. L.C. No. 03-2376 CC 26. March 14, 2007. An Appeal from the County Court for Miami-Dade County, Phillip Cook, Judge. Counsel: Stuart B. Yanofsky, Stuart B. Yanofsky, P.A., for Appellant. Valerie A. Dondero, Houck Anderson, P.A., for Appellee.
(Before REYES, ARECES, and ADRIEN, JJ.)
(PER CURIAM.) The Appellant/Plaintiff, Patrick Samuels, appeals the trial court’s grant of final summary judgment in favor of the Appellee/Defendant, Progressive Express Insurance Company. The Plaintiff sued Progressive to collect insurance benefits under the collision portion of his automobile policy. The claim arose from an automobile accident that took place on January 29, 2001. At the time of the accident, the Plaintiff was out of town. His wife, Jacqueline Lloyd, gave Mitchell Dancy permission to operate the Plaintiff’s vehicle, so he could pick up her daughter from school. After conducting a preliminary investigation, Progressive denied coverage for the accident and canceled the policy on the basis of a material misrepresentation by Ms. Lloyd on the original automobile insurance application — failing to list Mitchell Dancy as a resident of the household over the age of 15.
The Defendant moved for summary judgment based on misrepresentation of a material fact. The trial court found that there was a material misrepresentation affecting the risk assumed by Progressive, and had Progressive known of Dancy, it would not have issued the policy at the same premium. The trial court’s order granting final summary judgment contains only a statement finding that there was no insurance coverage because of the material misrepresentation on the application completed on June 8, 1999. The Appellant contends that final summary judgment should not have been entered because of the conflicting testimony contained in the record. This conflicting testimony creates a material fact that prohibited the court from granting summary judgment. We agree.
As stated recently by the Third District in Verchick v. Hecht Investments, Ltd., 924 So. 2d 944, 945 (Fla. 3d DCA 2006), “[s]ummary judgment is proper if the court determines that no genuine issue of material fact exists and that the moving party is entitled to summary judgment as a matter of law. When considering a motion for summary judgment, the court must draw every possible inference in favor of the nonmoving party.” Thus, “[i]f the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966). Consequently, a summary judgment motion “should be denied if there’s even the slightest doubt concerning a material issue of fact.” Wal-Mart Stores, Inc. v. Tracz, 799 So. 2d 413, 415 (Fla. 5th DCA 2001). A grant of summary judgment is only proper “[w]here the evidence is clear and uncontradicted [of] the materiality of the misrepresentation.” Guerrero v. John Hancock Mutual Life Ins. Co., 522 So. 2d 1032, 1033 (Fla. 3d DCA 1988).
The evidence submitted by the Appellee does not clearly and conclusively establish that a material misrepresentation occurred which affected the risk assumed by the insurer. Because the evidence is conflicting, it requires the reader to weigh the answers given and the credibility of the witnesses, which is impermissible when ruling upon a motion for summary judgment. Therefore, the trial court’s entry of final summary judgment is reversed and the case remanded.
Reversed and remanded.
