16 Fla. L. Weekly Supp. 922a
Online Reference: FLWSUPP 1610MAJO
Insurance — Personal injury protection — Application — Misrepresentations — Where insurer did not appeal judgment in favor of medical provider/assignee finding that insured’s misrepresentation on application was not material and did not void policy as to insured, insurer’s appeals of identical judgments in favor of passengers are barred by collateral estoppel — No merit to argument that judgment as to insured does not qualify as final judgment for purposes of collateral estoppel because subsequent withdrawal of opinion on which court relied indicates that case may not have been decided correctly — Fact that insured has filed rule 1.540(b) motion for relief from judgment is of no moment because, assuming a mistake of law, such mistake cannot be remedied by this type motion
AFFIRMATIVE INSURANCE COMPANY, Appellant, v. ACUMAS TREATMENT CENTER, INC., a/a/o KENYATA MAJOR, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 08-067 AP, 08-068 AP, 08-069 AP. L.C. Case No. 05-3164 SP 23. August 11, 2009. An appeal from the County Court in and for Miami-Dade County, Caryn C. Schwartz, Judge. Counsel: Jeffery A. Rubinton, Rubinton & Laufer, LLC, for Appellant. Mark L. Rosen, Lubell & Rosen, LLC, for Appellee.
(Before BLAKE, SOTO and PRESCOTT, JJ.)
(PER CURIAM.) In the court below, the Appellee, Acumas Treatment Center, Inc. a/a/o Kenyata Major (hereinafter, “Acumas”), brought suit against the Appellant, Affirmative Insurance Company (hereinafter, “Affirmative”), for breach of contract after Kenyata Major (“Major”) sustained injuries as a result of an accident while she was a passenger in a car being driven by Lovestacia Montgomery (“Montgomery”). At the time of the accident, Montgomery was the named insured under an insurance policy for Personal Injury Protection (PIP) benefits provided by Affirmative. As a result of the accident, Major, as an insured passenger under Montgomery’s policy (see § 627.736(1), Fla. Stat. (2004)), sought and received medical services from Acumas, and subsequently assigned her benefits to Acumas. When Affirmative refused to pay for the medical services, Acumas brought suit. Affirmative maintained that there was no coverage under the policy for Major’s injuries because Montgomery, the named insured, had committed a material misrepresentation under the contract by failing to list all required members of her household on the application, voiding the policy and coverage as to all claimants.
Montgomery and another passenger in the car, Immanuel Blair (“Blair”), brought suit against Affirmative as well. (All three sustained injuries, received treatment from Acumas and assigned their rights under the policy.) Thus, there were three individual suits arising out of the car accident. All three cases were resolved by summary judgment in favor of Acumas, the trial court finding that Montgomery’s misrepresentation, under section 627.409 of the Florida Statutes, did not void the policy as to either Montgomery, Major, or Blair.
Consolidated here, Affirmative appeals the judgments in favor of Major and Blair. However, significantly and noteworthy, Affirmative has not appealed the judgment in Montgomery. Affirmative chiefly maintains that the trial court committed reversible error by not finding that Montgomery’s misrepresentation was material, voiding the policy ab initio, and thereby mandating that it also find that there was no coverage for Major’s and Blair’s injuries under the policy. In response, Acumas, preliminarily, argues that, in light of the Montgomery judgment, Affirmative, procedurally, is collaterally estopped from bringing these appeals. In the alternative, and as to the merits, Acumas argues that section 627.409 did not operate to preclude coverage for Major’s and Blair’s injuries under Montgomery’s policy, contrary to Affirmative’s contentions.
We find that Affirmative’s consolidated appeals are procedurally barred by the doctrine of collateral estoppel, obviating this Court’s need to address the merits.
In general, the doctrine of collateral estoppel prevents identical parties from relitigating identical issues that have been determined in a prior litigation. See Hicks v. Hoagland, 953 So. 2d 695, 698 (Fla. 5th DCA 2007); Burns v. DaimlerChrysler Corp., 914 So. 2d 451, 453 (Fla. 4th DCA 2005). Further, as stated in Zikofsky v. Marketing 10, Inc., 904 So. 2d 520, 525 (Fla. 4th DCA 2005):
[t]he doctrine of collateral estoppel (or issue preclusion), also referred to as estoppel by judgment and estoppel by matter of record, is related to res judicata, but it is a different concept. In Florida, collateral estoppel bars relitigation of the same issue between the same parties which has already been determined by a valid judgment. Collateral estoppel applies even when a present and former cause of action are different and it bars relitigation of specific issues — that is to say points and questions — that were actually litigated and decided in the former suit. Florida has traditionally required that there be a mutuality of parties in order for the doctrine to apply. Thus, unless both parties are bound by the prior judgment, neither may use it in a subsequent action.
(All internal citations and quotations omitted.) Thus, succinctly, in order for the doctrine to apply, three elements must be shown: same legal issue, same parties (or privies; see City of Oldsmar v. State, 790 So. 2d 1042, 1046 n.4 (Fla. 2001)), and a prior valid prior judgment.
Applied currently, it is indisputable that the prior action (i.e., the unappealed and final Montgomery judgment) and the present appeals involved the same parties; i.e., Acumas (privy of Montgomery, as well as of Major and Blair, as its assignees), and Affirmative, the insurer. Further, it is clear that the Montgomery suit went to judgment. With respect to whether the same legal issue is being litigated here as was in the Montgomery suit, a simple analysis of the PIP statute (specifically, section 627.736(1)), is warranted.
As noted above, this section requires an insurer to cover a passenger in a vehicle that has been involved in an accident, in addition to a named insured.1 Thus, a passenger’s coverage under a PIP policy directly flows from the name insured’s coverage; that is, they are, essentially, one in the same. Accordingly, whether the policy was void as to Montgomery because of the misrepresentation is the same issue here on appeal because Major and Blair, as passengers, are insureds by virtue of the fact that Montgomery is an insured. Given the parameter of section 627.736(1), when the court determined, in the Montgomery suit, that the misrepresentation did not void coverage as to Montgomery, it, ipso facto, determined that coverage was not voided as to Major and Blair as well. In other words, there was coverage for all who were in the car during the accident, or coverage for none.
Affirmative argues, however, that the summary judgments in favor of Acumas should be reversed because the trial court, in deciding the Montgomery case, relied on an erroneously decided case which was decided by this circuit court sitting in its appellate capacity, the opinion on which was subsequently withdrawn and substituted. Further, based on such, Acumas has filed a 1.540(b) motion vis-à-vis the Montgomery judgment. We take Affirmative’s argument here to essentially mean that since the Montgomery case may have been decided incorrectly (as evidenced by the withdrawal and substitution of authority relied upon therein), it cannot legally qualify as a “final judgment” for purposes of collateral estoppel. However, irrespective of whether Montgomery was decided correctly, it is clear that it would still qualify as a final judgment for such purposes, as there is no requirement that the prior judgment has to be “correct.” See, e.g., Hinton v. Iowa National Mut. Ins. Co., 317 So. 2d 832 (Fla. 2d DCA 1975). Moreover, the fact that Affirmative has filed the 1.540(b) motion is of no moment as well because a mistake of law (assuming) cannot be remedied by this kind of motion. See, e.g., Commonwealth Land Title Ins. Co. v. Freeman and Slosbergas, 884 So. 2d 164 (Fla. 2d DCA 2004).
Accordingly, Affirmative’s consolidated appeals here are procedurally barred by the doctrine of collateral estoppel. In so finding, we do not decide whether the lower court was correct in determining whether Montgomery’s misrepresentation was material so as to avoid coverage for the claimants. Thus, the trial court judgments in Major and Blair must stand.
AFFIRMED.
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1Unless, however, if the passenger owns a vehicle or resides with a person with his or her own PIP policy. See § 627.736(4)(d)(4), Fla. Stat. (2004).
