17 Fla. L. Weekly Supp. 885a
Online Reference: FLWSUPP 1710SANC
Insurance — Personal injury protection — Coverage — Where undisputed facts showed that accident in which claimant was injured occurred approximately two and a half hours before contract of insurance was obtained, provider could not establish that contract of insurance existed that would cover loss — Doctrines of waiver and estoppel do not apply to create insurance coverage which was non-existent at time of accident
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. C.N. REHABILITATION CENTER, a/a/o VISLEIDY SANCHEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09 106AP. June 14, 2010. Counsel: Michael J. Neimand, for Appellant. Todd A. Landau, for Appellee.
(Before RONALD FRIEDMAN, JOSE RODRIGUEZ, ISRAEL REYES, JJ.)
(PER CURIAM.) On December 7, 2005 at 7:55 a.m. Maritza Gomez was involved in an automobile accident; her daughter, Visleidy Sanchez (“claimant”) was a passenger and sustained injuries. The following day, the claimant sought medical treatment from the Appellee, C.N. Rehabilitation Center (“C.N. Rehab”). On December 23, 2005, the claimant filed a claim for PIP benefits through her parents’ insurer United Automobile Insurance Company (“UAIC”). Thereafter, on January 16, 2006, UAIC required the claimant to attend an independent medial examination. In a subsequent written correspondence to the claimant’s counsel, UAIC indicated that as of the date of the letter, it did not intend to assert any policy coverage defenses. Despite C.N. Rehab’s attempts to collect under the bills, UAIC did not issue payment and in an April 5, 2006 letter, cited an ongoing investigation of the claim as grounds for non-payment. This suit, for breach of contract and failure to provide an explanation of benefits, followed.
After litigation ensued, C.N. Rehab filed a motion for summary judgment relying on the deposition of UAIC’s litigation adjuster, who testified that there was no issue with regard to coverage in this claim. In response, nearly three years after the accident and one year after the suit was filed, UAIC asserted that the contract of insurance was obtained on December 7, 2005 at 10:23 a.m.; approximately two and 1/2 hours after the accident. As a result, UAIC sought to deny coverage based on the non-existence of a policy and asserted that C.N. Rehab failed to establish that an insurance contract existed at the time of the loss.
The trial court granted summary judgment in favor of C.N. Rehab finding: (1) the adjuster stated “no” when asked “[d]o you have an issue with regard to coverage in this particular case”; (2) the adjuster acknowledged that she had no issue regarding fraud or material misrepresentation; (3) the adjuster acknowledged during a deposition that UAIC mailed a correspondence advising the claimant that “at this time we do not contend that there are any policy coverage defenses”; and (4) at no point during the entire pre-suit adjustment of the claims did UAIC contend or allege that the policy in question did not afford coverage to Ms. Sanchez. This appeal followed.1 We review the trial court’s order granting summary judgment is de novo. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000).
The undisputed facts show that the accident occurred on December 7, 2005 at 7:55 a.m. while the contract of insurance was not issued until December 7, 2005 at 10:23 a.m. Thus, C.N. Rehab did not, and cannot, establish that a contract of insurance existed that would cover the loss. Nevertheless, C.N. Rehab asserts the doctrines of waiver and estoppel apply to create insurance coverage covering the instant loss.
The general rule in applying equitable estoppel theories to insurance contracts provides that waiver and estoppel may be used defensively to prevent a forfeiture of insurance coverage, but not affirmatively to create or extend coverage. United Automobile Ins. Co. v. Brooks, 837 So. 2d 423 (Fla. 3d DCA 2002); Crown Life Ins. Co. v. McBride, 517 So. 2d 660 (Fla. 1987). Stated otherwise, “equitable estoppel is not designed to aid a litigant in gaining something, but only in preventing a loss. In other words, it will not avail in offense, but only in defense.” McBride, 517 So. 2d at 661. An exception to the general rule is the doctrine of promissory estoppel, which if affirmatively proven, may be utilized to create insurance coverage where to refuse to do so would sanction fraud or other injustice. Id. at 662. Therefore, in order for waiver or estoppel to apply in the context before this tribunal, C.N. Rehab would have to show that it detrimentally relied on UAIC’s representations in delivering medical treatment to the claimant, and as a result, the court should create coverage where none otherwise existed. Waiver and promissory estoppel may not create coverage in the instant case for multiple reasons.
First, UAIC’s conduct did not amount to a promise to pay C.N. Rehab for any treatment rendered to the claimant. The primary statement the trial court relied upon was made post-litigation on August 4, 2008 by UAIC’s adjuster during a deposition. Clearly, in rendering treatment to the claimant in 2006, C.N. Rehab did not rely on the adjuster’s statement. Second, the pre-litigation notarized letter written to the claimant stating, “at this time we do not contend that there are any policy coverage defenses” can neither serve as a promise by UAIC that it would not, at a later time, advance coverage defenses, nor serve as a promise to pay for services rendered. Third, as the underlying rationale approving theories of promissory estoppel to create coverage is to prevent an injustice, as applied here, creating coverage for the insureds would serve only to advance their fraudulent actions in binding insurance after an accident. Thus, here, waiver and estoppel cannot create or extend coverage where none existed. Based on the foregoing, the trial court misapplied the facts and the rule of law. Therefore, it is,
ORDERED and ADJUDGED that the trial court’s grant of summary judgment in C.N. Rehab’s favor is REVERSED.
__________________
1C.N. Rehab confesses error as to UAIC’s failure to provide an explanation of benefits. United Automobile Ins. Co. v. A 1st Choice Healthcare Sys., 21 So. 3d 124 (Fla. 3d DCA 2009).
