14 Fla. L. Weekly Supp. 1061a
Insurance — Personal injury protection — Notice of loss — Where omnibus insured, who was passenger in insured vehicle and mother-in-law of insured, failed to provide information regarding residence and vehicle ownership necessary to verify coverage prior to filing suit, insurer had not received notice of covered loss at time of filing complaint, and complaint is legal nullity
SURGICAL SERVICES OF DADE COUNTY, INC. a/a/o MARIA L. CARBO, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County, General Jurisdiction Division. Case No. 05 5361 SP 25 (02). July 16, 2007. Lawrence D. King, Judge. Counsel: Neil M. Gonzalez. Miriam R. Merlo, Gaebe Mullen Antonelli Esco & DiMatteo, Coral Gables.
FINAL SUMMARY JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE having come to be heard on July 3, 2007, on Defendant’s Motion for Final Summary Judgment, and the Court having heard argument of counsel, and being otherwise advised in the premises, it is hereupon,
ORDERED AND ADJUDGED that final summary judgment is entered in favor of Defendant and against the Plaintiff based upon the following findings made by the Court. The Court finds that Defendant, UNITED SERVICES AUTOMOBILE ASSOCIATION, did not receive notice of a covered loss. The omnibus insured, whether by accident or intentional, defeated the rightful investigation of the claim, by failing to supply the completed application for no-fault benefits and insurance/no-insurance affidavit, thereby significantly affecting the rights of the insurer from making an informed decision in order to authenticate the claim. The Court finds that the information requested in the application for no-fault benefits and the affidavit of insurance/no insurance was a critical document to the insurer’s investigation and would have given rise to notice of a covered loss had the insured complied with the requests for this information.
The Court also relies upon the rationale embodied in Body X-Ray Corp. v. Progressive, 13 Fla. L. Weekly Supp. 1091 (11th Jud. Circ. July 24, 2006). As noted in that case, benefits did not become overdue until ten (10) days after receipt of the requested information, i.e., on August 19, 2005. Suit was filed in that case on August 4, 2005. Thus, it was undisputed in that case that at the time of the filing of the Complaint, the insurer had not received notice of a covered loss such that the Plaintiff would be entitled to the relief requested.
Similarly here, suit was filed on April 11, 2005. Notice of a covered loss was not received until May 13, 2005, when the insured, through her attorney, finally supplied the completed Application for No-Fault Benefits and Affidavit of Insurance/No-Insurance. It was the information contained within these forms that allowed the insurer to confirm coverage and authenticate the claim. Insured’s lack of compliance with the requested information stood in the way of making this decision. The record is undisputed that the insurer, in writing, attempted on at least four separate occasions to obtain the necessary information in order to authenticate the claim. Thus, as in Body X-Ray Corp., supra, Plaintiff’s complaint is a legal nullity because the insurer had not received notice of a covered loss at the time of the filing of the Complaint.
The Court is also mindful of the Florida Supreme Court’s holding in Ferry-Morse Seed Co. v. Hitchcock, 426 So.2d 958, 961 (Fla. 1983), which noted that a statutory cause of action cannot be commenced until the Plaintiff has complied with all conditions precedent. Because the insurer in this case was not allowed to verify coverage due to the actions or inactions of the omnibus insured and her attorney, it did not have notice of a covered loss, and conditions precedent could not be satisfied in order to file this statutory lawsuit.
Plaintiff’s reliance upon Crooks v. State Farm, 659 So.2d 1266 (Fla. 3d DCA 1995) is misplaced because the facts of that case are clearly distinguishable to the case at hand. In Crooks, the insurer neither alleged, nor attempted to establish that it had reasonable proof of non-responsibility for payment of the bills. They simply paid after suit was filed and disputed the attorney fees. In Crooks, coverage was not an issue as the actual insured was the one involved in the claim unlike this case where it is an omnibus insured attempting to get coverage under the policy issued by the Defendant. Also, in Crooks, the insurer failed to make payment because the bills received were not received on a particular in-house claims form.
In the instant case, the omnibus insured was a passenger in the insured vehicle and the mother-in-law of the insured. Insurer requested information regarding the residence and vehicle ownership of the mother-in-law in order to verify coverage. Unlike Crooks, this insurer not only alleged, but established that it had reasonable proof to avoid payment until it was provided with notice of a covered loss. The record is undisputed that there was no notice of a covered loss at the time of the filing of the Complaint, thus the Complaint is a legal nullity and is premature.
Plaintiff voluntarily dismissed Count II of the Complaint at the hearing. Accordingly, final summary judgment is entered in favor of Defendant and against the Plaintiff on the remaining Count I of the Complaint. The court reserves jurisdiction to award attorney fees and costs.
