20 Fla. L. Weekly Supp. 428a
Online Reference: FLWSUPP 2004KPENInsurance — Personal injury protection — Coverage — Medical expenses — Denial — Misrepresentations — Evidence does not support insurer’s denial of coverage based on material misrepresentations by insured in connection with wage loss claim or insurer’s assertion that insured failed to provide information necessary to verify insured’s wage loss claim — Ambiguity created by inclusion of two different employer names on wage-loss claim form was inadvertent and quickly corrected by insured and was not a material misrepresentation that justified voiding coverage
ALL FAMILY CLINIC OF DAYTONA BEACH, INC. d/b/a FLORIDA MEDICAL ASSOCIATES a/a/o KRYSTAL PENNEA, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2009-11373-CODL. January 30, 2013. Robert A. Sanders, Jr., Judge. Counsel: Kimberly P. Simoes, The Simoes Law Group, P.A., DeLand, for Plaintiff. Wendy L. Pepper, Andrews & Manno, P.A., Tampa, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE coming before the Court for consideration on Plaintiff’s Motion For Summary Disposition and after reviewing the court file, hearing argument of counsel and being fully apprised in the premises, orders as follows:
I. Background.
USAA’s policyholder, Krystal Pennea, was involved in a motor vehicle accident on May 29, 2008. As a result of injuries received in this accident, on December 3, 2008, Pennea received an MRI from All Family Clinic of Daytona Beach (All Family). All Family submitted a bill in the amount of $1909.93 to USAA and USAA allowed reimbursement in the amount of $703.48. All Family served a Demand Letter on USAA on April 17, 2009, asserting an additional $260.34 was due from USAA. USAA responded and paid an additional $80.40 on May 19, 2009. Following these two payments, All Family Clinic contended that USAA had not fully satisfied its obligations to pay pursuant to the policy of insurance and a lawsuit was filed on July 17, 2009.
On June 4, 2010, USAA served its Answer and Affirmative Defenses to the Plaintiff’s claim and asserted six defenses. USAA’s fourth affirmative defense stated:
There is no PIP coverage available to Krystal Pennea for this subject claim due to her breaching the policy of insurance by making a material representation (sic) involving this claim.
USAA also asserted affirmative defenses regarding the propriety of its payment pursuant to the statutory fee schedule (third affirmative defense) and challenging the sufficiency of the demand letter by the Plaintiff (fifth affirmative defense). USAA withdrew its third and fifth affirmative defenses to the Plaintiff’s claim. (DE 33, 43) The sole remaining substantive defense asserted by USAA is it’s contention that the policyholder — Krystal Pennea — breached the policy terms by making material misrepresentations during the claims process.
II. Evidence Relied Upon by USAA.
Pennea submitted a claim for lost wages to USAA on or about November 18, 2008. In her “wage and salary verification” form, Pennea asserted that she had lost wages from the date of the accident of May 29, 2008 through the date of the lost wage claim of November 18, 2008. The verification form provided by Pennea contained a variety of information including the name of her employer. The lost wage form submitted on behalf of Pennea contained the names of two different companies — “Custom Window Systems” in Ocala Florida which was typed on the top of the form and “Custom Window & Door Inc.” which was handwritten under the “employer” blank at the bottom of the form. Based upon the identification of “Custom Window Systems” in the lost wage form, USAA requested wage and salary information from this company. Custom Window Systems advised that Krystal Pennea was not an employee of “Custom Window Systems” and had never been employed by the company. However, USAA confirmed that Krystal Pennea did work at “Custom Window & Door, Inc.” prior to her motor vehicle accident and received information confirming that employment. USAA was also advised that the typed name of “Custom Window Systems” was erroneously typed on the form by Ms. Pennea’s attorney. On February 9, 2009, USAA requested additional information regarding Custom Window and Doors Inc. from Ms. Pennea’s counsel, clearly indicating that USAA had identified the correct employer.
On March 17, 2009, USAA advised Krystal Pennea that it was voiding her policy of insurance for material misrepresentation in the presentation of her lost wage claim. As the basis for the decision to void Pennea’s policy of insurance and deny her claim USAA stated:
We have completed our investigation into the wage loss claim you submitted to USAA. You submitted employment documentation from Custom Window Systems located in Ocala, Florida. Our investigation determined that you never worked for this company. You misrepresented material facts in the presentation of your wage claim by submitting false wage claim documents and false information. In addition, you failed to provide tax returns and W-2 forms as requested.
Additionally, USAA contended that it was permitted to void Pennea’s claim for lack of cooperation in that she did not provide sufficient information to USAA to verify the amount of her lost wage claim.
On April 22, 2011, the Plaintiff took the deposition of Krystal Pennea. Ms. Pennea testified that she had never worked at Custom Window Systems in Ocala, Florida, but did work at Custom Window & Door, Inc. Ms. Pennea testified that her attorney’s office had erroneously put the wrong company name on the form and she had not noticed the difference when the form was completed, but that all other information on the form was correct. Pennea further testified that she had not been employed since the date of the accident and that she had provided USAA with all information to substantiate her employment with Custom Window & Door, Inc.
On April 15, 2011, the Plaintiff took the deposition of Tammy Reed, the corporate representative of USAA. Ms. Reed testified that USAA considers the error in the name of the employer on the wage loss form to be a material misrepresentation by Pennea. Ms. Reed conceded that the form contained the correct name of the employer on the same form and that Ms. Pennea did not intentionally misrepresent the name of her employer on the top of the wage verification form. USAA conceded that it did receive 1099s from Pennea for Custom Window and Door, Inc. and that Pennea was employed at that business. USAA further contended that Pennea’s policy was also properly voided due to Pennea’s failure to cooperate with USAA in confirming her wage loss claim.
III. Findings of Fact and Law
On March 17, 2009, USAA voided Pennea’s policy citing the “MISREPRESENTATION” provision of the insurance policy which provided as follows:
We do not provide any coverage under this policy to any person who has knowingly concealed or misrepresented any material fact or circumstance related to this insurance:
1. At the time application was made; or
2. At any time during the policy period or
3. In connection with the presentation or settlement
Additionally, USAA contended that it was voiding Pennea’s policy for “failure to supply requested information” in the verification process of her lost wage claim.
The record clearly and unequivocally indicates that Pennea was employed by Custom Window and Doors, Inc. prior to May 29, 2008. USAA’s insistence that the ambiguity created by the name “Custom Window Systems” on the top of the form and the handwritten “Custom Window and Doors, Inc.” at the bottom of the form created a material misrepresentation by Pennea is disingenuous. USAA conceded that the wage verification form contained two different company names and that Ms. Pennea immediately corrected the ambiguity. Furthermore, USAA acknowledged that the form was completed by Ms. Pennea’s attorney and the attorney erroneously identified the employer. USAA has conceded that Ms. Pennea did not intentionally “misrepresent” the identification of her employer on the form.
USAA contends that Ms. Pennea also failed to provide 1099s, W-2 forms and other verifying information for her lost wage claims. USAA concedes that it received 1099 forms and received wage loss verification information from the United States Army. However, USAA contends that this information contained inconsistencies and that additional information was needed. It is undisputed that Ms. Pennea provided USAA with an authorization to obtain wage and salary information on January 5, 2009.
IV. Opinion of the Court.
For USAA to void Pennea’s policy for misrepresentation it must show that Pennea “knowingly concealed or misrepresented” a material fact “in connection with the presentation” of the lost wage claim. USAA does not assert that Pennea is guilty of this conduct by submitting an ambiguous wage loss form and the facts would not support such a position irrespective of USAA’s acknowledgement.
The remaining allegations by USAA are merely arguments by USAA that suggest that it has not received sufficient information to process or verify Ms. Pennea’s lost wage claim. USAA’s identification of alleged “inconsistencies” and “overlap” in Ms. Pennea’s wage loss information is not a basis for voiding of the policy based upon material misrepresentation as USAA has presented no evidence that would satisfy such a claim. At best USAA presents hearsay evidence which is inadmissible and cannot be considered by this Court in opposition to Plaintiff’s motion for summary judgment. Rose v. ADT Sec. Services, Inc., 989 So. 2d 1244 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D2162b].
USAA’s contention that it was unable to obtain sufficient information to confirm Ms. Pennea’s lost wage claim is also without merit. It is undisputed that on January 5, 2009, Ms. Pennea provided USAA with an executed authorization to allow USAA to obtain any information necessary to satisfy its concerns regarding her wage loss claim. This authorization provided USAA with authorization to obtain any information from Pennea’s employer regarding her “position, job title, work history, nature of wages, loss of earnings, hours and time lost from work . . .” Notwithstanding the foregoing, once USAA voided Ms. Pennea’s policy on March 17, 2009, Ms. Pennea had no further obligation to comply with any request for information from USAA. Therefore, any suggestion that Ms. Pennea failed to continue to cooperate with USAA after USAA voided her policy is without merit.
WHEREFORE, the Court finds that Plaintiff’s Motion for Summary Disposition as to USAA’s Fourth Affirmative Defense regarding material misrepresentation is GRANTED.
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