16 Fla. L. Weekly Supp. 979a
Online Reference: FLWSUPP 1610JAIM
Insurance — Personal injury protection — Misrepresentations — By proceeding with claim as if no material misrepresentation existed, insurer waived right to assert that defense
GARRETT R WEINSTEIN, D.C., P.A., a Florida Corporation (assignee of Jaimes-Ramirez, Liz Karina), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-17440 COCE 54. August 11, 2009. Lisa Trachman, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Russell S. Kolodziej, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT
(re: No Coverage due to Material Misrepresentation)
THIS CAUSE, came before the court for hearing on July 21, 2009, and the Court, having reviewed the Motion, the court file, legal authorities and having heard argument of counsel, finds as follows:
Factual Background: This is a P.I.P. case. Defendant alleges that the insured, Amalfi Ramirez, made a material misrepresentation precluding coverage for the patient, her daughter, Liz Karina Jaimes-Ramirez (“daughter”). Plaintiff responds that the daughter should be considered an “innocent insured” and that the Defendant waived (or should be estopped from asserting the defense) since it proceeded with the claim as if no prima facie defect existed when it required the patient to undergo an I.M.E., it tendered checks to Plaintiff for services rendered to the daughter and it made payments to other medical providers who rendered treatment to the Plaintiff.
Legal Conclusions: This Court agrees with the Plaintiff in that the Defendant proceeded with the claim as if no prima facie defect existed (and by doing so, waived its right to assert this defense). See United Auto. Ins. Co. v. Mary Brown, 15 Fla. L. Weekly Supp. 893b (Broward Circuit Court, in its appellate capacity, 2008) Cert. denied January 16, 2009 (Fla. 4th D.C.A.).
Accordingly, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment (re: No Coverage due to Material Misrepresentation) is DENIED.
