15 Fla. L. Weekly Supp. 185a
Insurance — Personal injury protection — Application — Misrepresentations — Insurer waived alleged material misrepresentation by failing to return premium to insured
SPINE REHABILITATION CENTER, INC., (as assignee of Jenry Valdes), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 06-CC-02161, Division “M”. November 29, 2007. Daniel E. Gallagher, Judge. Counsel: Timothy A. Patrick, Nicholas, Lipscomb & Patrick, P.A., Tampa, for Plaintiff. Heather Harwell, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE, having come before the court on November 5, 2007, on Plaintiff’s Motion For Final Summary Judgment, with Timothy A. Patrick, Esquire appearing on behalf of Plaintiff and Heather Harwell, Esquire appearing on behalf of Defendant, and the court having heard argument of counsel and the court, after hearing argument of counsel, for the reasons stated orally and recorded in open court, which shall constitute the decision of this court, it is, hereby ORDERED AND ADJUDGED as follows:
1. The Defendant made allegations that its insured committed a material misrepresentation by failing to disclose material facts on the application for insurance, by failing to state that Jenry Valdes was using the relevant vehicle for business use at the time of the incident. Defendant asserts that said failure to disclose material facts voids the subject policy from its inception.
2. The Plaintiff filed an affidavit from the insured which stated that the insured specifically informed Defendant’s agent that Jenry Valdes would be using the vehicle for business use.
3. Subsequent to attempting to void coverage based upon the alleged material misrepresentation, the Defendant failed to return the premiums to its insured.
4. The court follows the decision of Martinez v. General Insurance Company, 483 So. 2d 892, (Fla. 3rd DCA, 1986), the Third District Court of Appeals adopted, Dairyland Insurance Company v. Kammerer, 317 N.W. 2d 618 (1982), which held that, when learning of the alleged [material misrepresentation in an insurance application], the insurer has two choices. Either it could, because of the alleged fraudulent statements made to it, cancel the policy from its inception and return to the insured the entire premium, on the theory that the policy never came into existence, or it could waive the alleged [material misrepresentation], keep the premium earned and accept responsibility under the policy.
5. The Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED.
