16 Fla. L. Weekly Supp. 213c
Online Reference: FLWSUPP 163POSAS
Insurance — Personal injury protection — Application — Misrepresentations — No error in entering summary judgments in favor of insureds alleged to have made material misrepresentations on applications where evidence of materiality of misrepresentations was inadmissible as offered — Although transcripts of unsworn recorded statements of insureds offered as proof of misrepresentations were inadmissible, insureds’ own affidavits do raise issue of fact as to omissions of potentially relevant household members on applications — However, insurer failed to present admissible evidence of materiality of omissions where unauthenticated letters by underwriters in support of claim that premiums would have been higher had insureds disclosed all alleged household members were properly excluded, and affidavits filed in support of underwriters’ records, which were not offered by underwriters or records custodian, were also inadmissible
AFFIRMATIVE INSURANCE CO., Appellant, vs. BAYVIEW MEDICAL & REHAB CENTER, INC., (as assignee of FELIPE POSAS), Appellee. Circuit Court, 13th Judicial Circuit (Appellate) for Hillsborough County, Civil Appeals Division. Case No. 06-10654, Division X. L.C. Case No. 05-4126-CC. Consolidated with: AFFIRMATIVE INSURANCE CO., Appellant, vs. BAYVIEW MEDICAL & REHAB CENTER, INC., (as assignee of NAIROVYS BELL), Appellee. Case No. 06-10792-CC, Division X. L.C. Case No. 05-9596-CC. AFFIRMATIVE INSURANCE CO., Appellant, vs. BAYVIEW MEDICAL & REHAB CENTER, INC., (as assignee of QUANETTA MIMS), Appellee. Case No. 06-11208, Division X. L.C. Case No. 05-1940-CC. AFFIRMATIVE INSURANCE CO., Appellant, vs. JULIE MOTT, Appellee. Case No. 07-578, Division X. L.C. Case No. 05-11169-CC. AFFIRMATIVE INSURANCE CO., Appellant, vs. ALEXIS REHAB CENTER, INC., (as assignee of ROSEMARIE NIEVES), Appellee. Case No. 07-9050, Division X. L.C. Case No. 05-3167-CC. January 15, 2009. On review final judgments of the County Court, Hillsborough County. The Hon. Charlotte Anderson, The Hon. Gaston Fernandez, The Hon. Eric Myers, The Hon. Joelle Ann Ober, County Court Judges, presiding. Counsel: Jeffrey A. Rubinton, Alicia Lyons Laufer, and Heather A. Burns, Davie, for Appellant. Timothy A. Patrick, Nicholas & Patrick, P.A., Tampa, for Appellee.
[Editor’s note: County court orders published at 13 Fla. L. Weekly Supp. 1214b (Bell v. Affirmative Ins. Co.); 13 Fla. L. Weekly Supp. 1211a (Bayview Medical & Rehab Center, Inc. v. Affirmative Ins. Co.); 14 Fla. L. Weekly Supp. 868b (Alexis Rehab Center, Inc. v. Affirmative Ins. Co.)]
(JAMES D. ARNOLD, J.) Appellant Affirmative Insurance Company (Affirmative) appeals each of the summary judgments entered in favor of the insureds1 in each of the five underlying suits. Affirmative contends that the trial courts improperly excluded evidence that demonstrated the presence of disputed facts. Affirmative also contends that the courts applied the incorrect law in entering summary judgment when one or more found that the misrepresentations were not material. Because we find that the evidence of the materiality of the alleged misrepresentations of the insureds was inadmissible as offered, or the record is incomplete, we affirm the judgments of the trial courts in all cases.
The Cases: In each of the consolidated personal injury protection (PIP) cases on appeal, the insureds made claims under their PIP insurance contracts with Affirmative. Affirmative discovered discrepancies between statements made on the insureds’ applications for insurance coverage and statements they made in the process of making a claim on their insurance. More specifically, the discrepancies related to the presence of previously unnamed household residents and/or drivers residing with the insureds. Upon learning of the alleged omissions, Affirmative sought to void each policy from its inception by sending a notice letter and refund of policy premiums to each insured.2 The insureds filed suits seeking declarations of coverage, and the trial courts awarded summary judgment in favor of each of the insureds. In Bell, Mott and Posas, the trial court found no misrepresentation or concluded any misrepresentation was not material. In Mims, the trial court entered judgment for the insured without stating grounds; however, argument centered on the alleged material misrepresentation. Although Affirmative filed an appeal in the Nieves case, the record is incomplete. Counsel for Nieves referred to the incomplete record in the answer brief, but Affirmative neither supplemented the record or filed a reply.
Julie Mott: The insured indicated in a post-accident conversation with Affirmative that she lived with her two daughters. Only one was listed on the application because only one was a licensed driver. Mott was injured in the subject accident. In an affidavit to the court, she indicated that her agent was aware of the unnamed daughter and was told she did not have to list her. In contrast, Mott’s insurance agent testified in a deposition that he would never knowingly omit any household member from the application and it was his regular practice to ascertain all members of the household. He specifically mentioned the catch-all question in the application, which asks — yes or no — whether all members of a household have been listed on the application, and he filed an affidavit stating that it was his regular practice to ascertain all the residents of the household. He did not have independent recollection of her case.
Felipe Posas: Mr. Posas was injured in the subject accident. On his insurance application, he failed to list his wife. Affirmative contends that he was still married at the time he filed his application. In an affidavit Posas submitted in support of his motion for summary judgment, Posas stated that his wife had not resided with him since 1998, and that his insurance agent assisted him with his application. Posas’s alleged commercial use of the vehicle is also at issue. Affirmative alleged that Posas, a mechanic, transported parts and went to various job locations, but he denied using the vehicle for commercial purposes on his application for insurance.
Mims: Mims was the non-resident passenger3 of Ms. Waneesha Jones, the insured. Affirmative contends that Jones failed to list the grandmother with whom she resides on her application for insurance. In her affidavit to the court, Jones stated that she told the agent that there were no other operators in her household but that Jones’ grandmother, who did not have a driver’s license, and Jones’ two children were residents of the household.
Bell: Bell was injured in the subject accident. At the time Ms. Bell applied for insurance she was the only driver of the vehicle; she said her mother, father, and brother resided in a separate household residence. Bell said her “separate” residence was located behind that of her parents and brother, and that her residence has its own separate entrance. Neither her parents nor her brother are listed as residents. Bell stated that she told the agent that she lived in separate residence with its own entrance but located behind her parents’ residence and that her brother resided with her parents but not with her. She further stated that the agent instructed Bell that she did not need to list her parents or brother on the application.
Nieves: Nieves was an insured of Affirmative; however, she was injured in and filed a claim for an accident in which she was a passenger. In her application, she listed only herself as an operator. There is virtually no appellate record of this case, despite the lapse having been brought to the attention of counsel for Appellant in the answer brief.
Discussion:
Review of summary judgment is de novo. Smith v. Frontier Communs. Int’l, Inc., 805 So. 2d 975 (Fla. 2d DCA 2001). The issue as to whether summary judgment is proper is whether the moving party has “conclusively show[n] that the [opposing party] cannot prove the claim [or defenses] alleged as a matter of law.” Hervey v. Alfonso, 650 So. 2d 644, 646 (Fla. 2d DCA 1995).
Affirmative sets forth a number of issues for this court’s consideration, but in three of the five cases, our decision hinges upon only one: the admissibility of the evidence purporting to show the materiality of the alleged misrepresentations. In addition, because of excluded evidence, we find that the insurer has failed to demonstrate that a conclusive misrepresentation occurred in Bell. Finally, the incomplete record in Nieves requires us to affirm the decision of the trial court.
In each case, Affirmative relied upon transcripts of unsworn, recorded statements of the insured4 taken after the accidents as proof of the alleged misrepresentations the insureds allegedly made on their applications. Affirmative alleged that the statements contained inconsistencies that constituted material misrepresentations which afforded Affirmative the privilege of voiding the policies ab initio. Affirmative argues that the statements are admissible as business records. Without discussion, we find that the statements were inadmissible.
Despite the exclusion of the recorded statements, the affidavits the claimants themselves filed with the court (except Nieves and Bell) do raise an issue of fact as to the omissions of potentially relevant persons from their applications. We were unconvinced in Bell that there was even a clear issue of fact. But for Affirmative to prevail on summary judgment, it must show that the factual disputes were material and that it was entitled to judgment as a matter of law. Florida Rule of Civil Procedure 1.510(c), relating to summary judgment, provides, in pertinent part:
. . .The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions, affidavits and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . (Emphasis ours.)
Affirmative relied only upon unauthenticated letters by underwriters in support of its claim that the premiums would have been higher had the claimants’ true residential status been known. These unauthenticated documents were properly excluded. Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707 (Fla. 4th DCA 1997). In such situations, a sworn affidavit of the underwriter or records is acceptable. See GRG Transport, Inc. v. Certain Underwriters at Lloyd’s, London, 896 So.2d 922 (Fla. 3d DCA 2005); Carter v. United of Omaha Life Ins., 685 So.2d 2 (Fla. 1st DCA 1996). The affidavits filed in support of the records in these cases were not offered by the records custodian or the underwriters themselves.
Inasmuch as there was no competent evidentiary support attesting to the materiality of the alleged misrepresentations, Affirmative failed to demonstrate that the insureds were not entitled to judgment as a matter of law. (PENDINO and LEVENS, JJ., Concur.)
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1In this consolidated case, some of the insureds assigned their benefits to healthcare providers, but one claimant brought suit in her own name and another was a nonresident passenger for the named insured. For purposes of this opinion, we will refer to all appellees as the insureds.
2In some of the cases, it appears the insureds cashed the refund checks. The legal impact of doing so has not been raised on appeal, and we do not address the issue.
3As a nonresident passenger, she would not need to be named on the insurance application.
4The Nieves record did not contain her statement or any other document pertaining to the case, nor was the record cited to in the initial brief Affirmative filed.
