19 Fla. L. Weekly Supp. 138b
Online Reference: FLWSUPP 1902ROLLInsurance — Personal injury protection — Application — Misrepresentations — Insurer abandoned right to deny coverage based on insured’s failure to list licensed son residing in household on policy when adjuster stated in deposition that she was not declaring material misrepresentation
NDNC NEUROLOGICAL TREATMENT CENTERS, INC., (a/a/o Roderick Rolle), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-2644 COCE (55). July 22, 2011. Sharon Zeller, Judge. Counsel: Emilio R. Stillo, Davie, for Plaintiff. Justin Cincola, Miami, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR PARTIALSUMMARY JUDGMENT AS TO COVERAGE ANDDEFENDANT’S MOTION FOR FINAL SUMMARYJUDGMENT AS TO COVERAGE
THIS CAUSE having come on to be heard on Plaintiff’s and Defendant’s Cross Motions on Coverage, and the Court having heard argument of counsel, and being otherwise advised in the premises, the Court finds as follows:
On May 15, 2002, Roderick Rolle was involved in a car accident and sustained injuries. He sought medical treatment from NDNC Neurological Treatment Center (NDNC). Claimant filed a claim for PIP benefits through his father’s insurer United Automobile Insurance Company (UAIC). Claimant submitted to a EUO and an IME. No payment was issued and Plaintiff filed suit for breach of contract. Both parties filed Motions for Summary Judgment. Plaintiff relies on the deposition of Defendant’s litigation adjuster, Aliea Khayoum. Defendant stands by their affirmative defenses of material misrepresentation of the insured who did not list his son on the policy; and that he is not entitled to benefits as he is not listed on the policy, and submitted other affidavits.
On November 3, 2008, the Plaintiff took the deposition of Aliea Khayoum, the litigation adjuster designated by United with the most knowledge of the claim. The following exchanges occurred at the deposition:
P.34 -35
Q: Why is there no deductible applicable to Roderick Rolle in this claim?
A: The claimant, first of all, wasn’t on the policy at issue. He did live in the household, however, he did not have a vehicle and he wasn’t on the policy. In all reality, there was a material misrepresentation, but they didn’t flat cancel the policy, so the deductible does not apply.
Q: Is there coverage for Roderick Rolle?
A: Yes there is.
Q. So Roderick Rolle can get coverage through Cleveland Rolle’s policy of insurance with United Automobile?
A: Yes.
Q: So the policy of insurance . . . would provide PIP benefits to Roderick Rolle for the auto accident of May 15th, of 2002, assuming that treatment was reasonable, necessary and related?
A: That’s correct.
P 78:
Q: Now, the first affirmative defense would be called material misrepresentation, correct?
A: Yes, however, I’m not declaring material misrepresentation.
Q: So, I don’t need to worry about that as an affirmative defense, is that fair?
A: Not to my knowledge.
MS. KIM: That’s correct.
WITNESS: That’s something my attorney would have to decipher.
P 86-87
Q: And so based on your understanding of how PIP provides benefits unless there’s a material misrepresentation, Roderick Rolle would be able to obtain PIP benefits from Cleveland Rolle’s policy?
A: Yes. He should have been on the policy at issue and he wasn’t on the policy, however, we did not cancel the policy.
Q: So you would say that unless United proceeds with cancelling the policy and returning the premium, Roderick Rolle would be able to obtain benefits from the policy of insurance that Cleveland Rolle has with United?
A: Yes.
Q: Does United have plans in the future to cancel the policy and return the premium?
A: It should have been done when they found that out. I don’t see that it was done, so to my knowledge it’s not at issue at this point.
On January 18, 2011, the Defendant filed a Motion for Summary Judgment which included affidavits from different corporate representatives: Jorge de la O, an underwriting supervisor and John O’Hara III, a litigation adjuster, both sworn to on December 29, 2011. The Defendant seeks to deviate from the sworn testimony of their other litigation adjusters.
In Metropolitan Dade County v. Yearby, the court held that “a party is necessarily bound by any relevant admission which either he or his agent makes.” 580 So.2d 186 (Fla. 3rd DCA 1991). They also held that when an agent of a party speaks against his own interest, it may be assumed that the agent has made adequate investigation so that such statements possess substantial indicia of reliability. Id. Citing McCormick on Evidence. Herein, not only did not the litigation adjuster state that she was “not declaring material misrepresentation,” but also, her attorney agreed with this position.
It is also well established that “a party when met by a Motion for Summary Judgment should not be permitted by his own affidavit, or by that of another, to baldly repudiate his previous deposition so as to create a jury issue, especially when no attempt is made to excuse or explain the discrepancy.”. . . . A party cannot take inconsistent positions in order to avoid summary judgment. Amador v United, 16 Fla. L Weekly Supp 446a, aff’d 16 Fla. L Weekly Supp 392a (Miami-Dade 2008).
This is not a case where a contract of insurance did not exist. The policy of insurance states that the company will pay benefits incurred as a result of bodily injury sustained by the named insured or any resident relative while occupying a motor vehicle. Coverage was in place. United had the right to deny coverage. Under paragraph 10 of this section titled Misrepresentation, it states: A misrepresentation, omission, concealment of fact or incorrect statement may prevent recovery under the contract. The misrepresentation MAY have prevented recovery; however the insurer stated they were not declaring a material misrepresentation. They abandoned those rights as stated by their litigation adjuster Aliea Khayoum. The language of the policy clearly allows the Defendant to make a choice whether to allow a recovery or not, based on the permissive language in paragraph 10. Therefore, the Plaintiff has shown that the loss did occur and it was within the coverage of the policy. It is therefore,
ORDERED AND ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment is GRANTED and that Defendant’s Motion for Final Summary Judgment as to coverage is DENIED.
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