14 Fla. L. Weekly Supp. 138a
Insurance — Personal injury protection — Application — -Misrepresentations — Error to enter summary judgment in favor of insured where insurer’s defenses raised disputed issues of fact as to whether insured made misrepresentations or false statements on application or knew of false statements yet allowed them to be made, whether false statements would have affected coverage or amount of premium, whether misrepresentation is legally material to loss, and whether insurer waived right to rescind policy by not reimbursing premium
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. HAROLD NEPTON, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 05-14883 (03). L.C. Case No. 04-1300 (50). September 27, 2006. Counsel: Michael J. Neimand, Coral Gables. Glenn Garrett, Plantation.
ORDER REVERSING SUMMARY JUDGMENT AND REMANDING CASE TO LOWER COURT
(PATTI ENGLANDER HENNING, J.) THIS CAUSE having come before the Court upon the appeal taken by Appellant UNITED AUTOMOBILE INSURANCE COMPANY, from the Lower Court’s ruling in favor of Appellee’s Motion for Summary Judgment in this PIP suit, and this court having considered the record and the parties’ briefs, and being otherwise fully advised in the premises, it is thereupon
ORDERED AND ADJUDGED:
1. That this Court has jurisdiction over the parties and subject matter of this appeal pursuant to Fla. R. App. P. Rule 9.030.
2. The standard of review of a Summary Judgment is de novo. This Court has viewed the matter in the light most favorable to the non-moving party. The Summary Judgment from which appeal is taken is dated September 14, 2005, and is conclusory in nature.
3. Summary Judgment is proper only when there are no genuine issues of material fact and the movant is entitled to Judgment as a matter of law.
4. Review of the hearing transcript, of the pleadings, and the briefs, and applying the applicable statutes and law thereto, requires that Summary Judgment be reversed. Review by this Appellate Court unavoidably leads to doubt as to whether there are genuine issues of material fact, and the slightest doubt requires reversal of summary judgment.
5. Whether an applicant has made misrepresentations or false statements on an insurance application, or knew of such false statements but allowed them to be made, and whether such falsehood would have effected coverage or the amount of the Insured’s premium, for example, present issues of material fact. The Lower Court erroneously disposed of these issues, given that such facts were raised by the Insurance Company’s defenses. See, Fla. Stat. section 627.409(1)(b), et seq.
6. Whether the Insured, under Fla. Stat. Chapt. 201, bore the responsibility, upon not receiving timely return of premiums, of filing an action for any unearned premium and interest, rather than taking no action and declaring laches or waiver for failure to reimburse, is an issue of material fact making Summary Judgment inappropriate. See, Fla. Stat. section 627.409. The Lower Court must decide whether Insurer’s actions constitute waiver or whether failure to disclose household member is a material misrepresentation that could preclude coverage and/or allow denial of coverage. Extremely relevant to this case was the holding that, whether Insurer intended to waive right to rescind policy was found to be a question of fact which precluded entry of summary judgment, in Leonardo v. State Farm and Casualty Company, 675 So.2d 176 (Fla. 4th DCA 1996).
7. While it appears Insured let large gaps pass between activity, it is erroneous to resolve through Summary Judgment whether waiver or laches apply, under the Leonardo case.
8. This Court also finds that the questions of whether a right to rescind the policy based on material misrepresentation was not resolvable through Summary Judgment. It is also a question of material fact whether the misrepresentation, if any, is legally material to the loss under the law.
WHEREFORE, this Court having considered this matter de novo finds that there are several genuine issues of material fact that should not have been resolved through means of Summary Judgment and otherwise merit the Lower Court’s consideration. Summary judgment is therefore reversed.
