17 Fla. L. Weekly Supp. 295b
Online Reference: FLWSUPP 1704FER2Insurance — Personal injury protection — Application — Misrepresentations — Where insured failed to disclose licensed son residing in household, and insurer would have required additional premium had it known of son, insurer may deny coverage for injuries sustained by son while driving mother’s insured vehicle — Insurer’s failure to return premium for period in which accident occurred did not waive insurer’s right to deny coverage to son but, rather, acknowledged that mother was covered under policy during that period — Mother cannot argue that she was unaware of misrepresentation because she failed to read policy she signed
TED BERGER, D.C., P.A., (a/a/o Carlos Fernandez), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-002898 COCE 54. February 1, 2010. Lisa Trachman, Judge. Counsel: Nicholas A. Zacharewski, Luks, Santaniello, Perez, Petrillo, Gold & Jones, Fort Lauderdale. Gregg Pessin.
ORDER ON DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
This matter having come before the Court on January 22, 2010 for hearing on Defendant’s Motion for Final Summary Judgment. Present before the Court appeared counsel for the Plaintiff, Greg Pessin, Esquire, and counsel for the Defendant, Nicholas A. Zacharewski, Esquire. Having heard arguments of Counsel, reviewed the pleadings, motions, and evidence before the Court and being otherwise fully advised in the premises, the Court finds as follows:
1. Plaintiff filed the instant action alleging breach of contract for failure to pay personal injury protection benefits for treatment rendered to Carlos Fernandez. Plaintiff claimed standing based on an assignment of benefits.
2. Carlos Fernandez was involved in a motor vehicle accident on or about April 25, 2005. He subsequently sought treatment from Plaintiff, Ted Berger, D.C., P.A. on May 2, 2005 and May 13, 2005.
3. On May 22, 2004, Defendant, United Automobile Insurance Company, entered into a policy of insurance with Teresa Torres. The policy was effective from May 22, 2004 through May 22, 2005. The application for insurance listed only Teresa Torres and the policy declarations did not show anyone other than Teresa Torres being listed on the policy.
4. It is uncontested that on April 25, 2005, Carlos Fernandez was a licensed driver in the state of Florida, was over the age of 14, and resided with his mother, Teresa Torres. Additionally, Carlos Fernandez was driving one of the insured motor vehicles on the policy at the time of the subject accident.1
5. The application for insurance contains the following language:
“All persons 14 years or older, licenses or not, who reside with the applicant(s) must be listed below whether or not they are operators of the vehicles listed. Failure to provide this information shall constitute a material misrepresentation, which shall result in all insurance coverages being void. This applies to students living away from home and person in the Armed Services, and any children or dependents of the applicant or applicant’s spouse, between the age of 14 and 21, who do not reside in the household.”
6. Based on the information provided in the application, an insurance policy with a premium of $1,265.00 was issued to Teresa Torres by Defendant.
7. In support of Defendant’s Motion for Summary Judgment, Defendant filed the affidavit of Jorge De La O, the underwriting supervisor, which provided that if United Automobile Insurance Company had known that Carlos Fernandez was a licensed driver in the state of Florida and resided with his mother, an additional premium of $1,154.00 would have been required for the same policy.
8. Florida Statute Section 627.409 provides:
(1) Any statement or description made by or on behalf of an insured or annuitant in an application for an insurance policy or annuity contract, or in negotiations for a policy or contract, is a representation and is not a warranty. A misrepresentation, omission, concealment of fact, or incorrect statement may prevent recovery under the contract or policy only if any of the following apply:
(a) The misrepresentation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer.
(b) If the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss.
(2) A breach or violation by the insured of any warranty, condition, or provision of any wet marine or transportation insurance policy, contract of insurance, endorsement, or application therefore does not void the policy or contract, or constitute a defense to a loss thereon, unless such breach or violation increased the hazard by any means within the control of the insured.
F.S. § 627.409(2005)
9. Further, where an omission or misrepresentation goes to the entirety of coverage, rescission and return of a premium may be a proper remedy; however, to require the insurer to return the premium to the insured where the materially false statement or omission results in a denial of coverage only for a risk never assumed by the insurer or paid for by the insured is to give the insured an undeserved windfall-coverage for nothing. Martinez v. General Insurance Company, 483 So. 2d 892, 93-94 (Fla. 3d DCA 1987). The failure to return the premium during the period in which the uninsured person was involved in the motor vehicle accident did not reaffirm the policy so as to waive the insurer’s right to deny coverage to person not listed on the policy but, rather, only acknowledged that the listed insured was covered under the policy. Id.
10. In the instant case, Carlos Fernandez, was not listed on the application for insurance, and was seeking coverage under the policy granted to Teresa Torres. The failure to list Carlos Fernandez on the policy of insurance would have resulted in an increased premium creating a material misrepresentation under the policy. The policy premium was not refunded as a result of the misrepresentation.
11. Plaintiff filed the affidavit of Teresa Torres in opposition to Defendant’s Motion for Summary Judgment. The affidavit stated that Teresa Torres advised the employees of K & W Insurance Associates that her son Carlos lived with her at the time. She further stated that the she did not fill out the application for insurance, but did sign the document after it was prepared for her.
12. Florida law is clear that an insured cannot argue that they are unaware of the misrepresentation because they failed to read the policy. It is presumed that a person who signs a policy application does so with the intent to authenticate it, and becomes bound thereby. Nationwide Mutual Fire Insurance Company v. Kramer, 23 Fla. L. Weekly D2326a (Fla. 2d DCA 1998); Allied Van Lines, Inc. v. Bratton, 351 So. 2d 344 (Fla. 2d DCA 1977) (holding no party can defend against the enforcement of a contract on the sole ground that he signed it without reading it). See also, Bennett v. Berk, 400 So. 2d 484 (Fla. 3d DCA 1981).
13. This Court is not persuaded by Plaintiff’s argument that a genuine issue of material fact exists, as the named insured, Teresa Torres, affirmed that she signed the application for insurance and in doing so, under Florida law she is presumed to having authenticated the policy for insurance which did not disclose her son, Carlos Fernandez. Further, Defendant was not required to return the premium to Teresa Torres as the same would have resulted in a windfall to the insured.
14. Plaintiff as assignee of Carlos Fernandez, stands in his shoes for all rights, responsibilities, and defenses under the subject insurance policy. State Farm Fire & Casualty Insurance Company, 556 So. 2d 811, 813 (Fla. 5d DCA 1990).
15. This Court finds that there exists no genuine issue of material fact, that Defendant is entitled to summary judgment as a matter of law.
Therefore it is accordingly ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is hereby granted in favor of Defendant and Plaintiff shall go hence without day.
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1The original policy was amended on October 22, 2004 to delete the 1987 Cadillac from the policy and add a 1997 Honda Accord Lx. It was the 1997 Honda Accord that was involved in the subject accident.
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FINAL JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE having been presented upon Defendant’s Motion for Final Summary Judgment, and the Court having granted same by Order dated January 22, 2010;
IT IS ADJUDGED:
Defendant is the prevailing party in the above referenced matter. The Plaintiff shall take nothing by this action. The Court hereby retains jurisdiction for the purposes of determining any motion to tax fees and costs.
