20 Fla. L. Weekly Supp. 425b
Online Reference: FLWSUPP 2004MELKInsurance — Personal injury protection — Coverage — Medical expenses — Denial — Misrepresentations — Insured’s material misrepresentations in examination under oath with respect to his claim for lost wages deprived him of entitlement to coverage for medical expenses, despite insured’s contention that lost wages claim and medical expenses claim were separate claims and insured’s withdrawal of claim for lost wages
STEVEN MELKA, Plaintiff, vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County. Case No. 08-4602-CO-41. December 12, 2011. Myra McNary, Judge. Counsel: Barry Berger, Law Office of Berger & Dowling, Palm Harbor, and Jerry S. Theophilopoulos, Tarpon Springs, Ramey & Kampf, P.A., for Plaintiffs. David B. Kampf, Tampa, for Defendant.
FINAL SUMMARY JUDGMENT
THIS CAUSE having come on to be heard on Defendant’s Motion for Summary Judgment, and the Court having reviewed the Motion, reviewed the record evidence, and having heard argument of counsel on November 18, 2011, and being otherwise advised in the Premises, finds as follows:
On March 16, 2007, Steven Melka had been involved in automobile accident. At the time of the automobile accident, Mr. Melka maintained a policy of insurance with Mercury Insurance Company of Florida. On May 13, 2007, Mr. Melka submitted a claim for Personal Injury Protection (“P.I.P.”) benefits to Mercury Insurance, which included a claim for loss of income. After conducting an investigation, Mercury Insurance Company of Florida denied Mr. Melka’s claim in its entirety based on material misrepresentations made by Mr. Melka as to his and his company’s loss of income. Mr. Melka subsequently filed the current lawsuit and has sought payment of medical benefits under the policy. In an effort to defeat Defendant’s misrepresentation defense, Mr. Melka’s limited his lawsuit to obtain medical benefits instead of loss of income benefits.
Defendant has moved for Summary Judgment based on the material misrepresentations made by the Plaintiff in his PIP claim, including requests for loss of income. In support of its Motion, the Defendant filed the Examination Under Oath of Mr. Melka taken on August 22, 2007; the Deposition of Mr. Melka taken on September 8, 2008; the affidavit of Mercury’s Representative, Stephanie Rapko, with attachments; the affidavit of Rock Haulers, Inc.’s Record Custodian, with attachments; and the affidavit of J & K Enterprises’ Record Custodian, with attachments. Upon considering the undisputed record evidence before the Court, that Court is compelled to grant Defendant’s Motion for Summary Judgment.
The Court finds that although the Plaintiff is no longer pursuing his claim for loss of income, at the time Plaintiff made his initial claim for PIP benefits, to include a claim for loss of income, Mr. Melka made material misrepresentations in support of his claim. For example, in his Examination Under Oath, Mr. Melka represented that he had been unable to work for the months following his accident and that his business had not been operating or generating revenue because he had no employees or contractors. After the claim was denied, Mr. Melka even confirmed at his deposition that he had completely closed his business following the accident for several months due to his injuries. However, documents from Rock Haulers Inc. and J & K Enterprise indicate otherwise as Mr. Melka’s company had been contracted with to complete jobs for the two entities. At his deposition, Mr. Melka confirmed that it was possible that he had actually been working during the time frame that he represented his company had been closed.
Although Mr. Melka is no longer pursuing a loss of income claim, this Court finds, in accordance with Bosem v. Commerce, 35 So.3d 944, 946 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D892a], that Mr. Melka may not recover any benefits under the Mercury policy. In Bosem, the District Court held that an insured’s fraud with respect to his claim for personal injury protection benefits for lost wages deprived him of entitlement to coverage of his claim for medical expenses; despite contention that the lost wages claim and the medical expenses claim were separate claims. Id. (citing §627.736(4)(g), Fla. Stat. (2006)). See also, Lopes v. Allstate Indemnity Co., 873 So.2d 344, 348 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D246a]; Schneer v. Allstate lndemn. Co., 767 So.2d 485, 489 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1175a].
Based on the undisputed record evidence that establishes Plaintiff made material misrepresentations in support of his PIP claim, and controlling case law, the Court grants Defendant’s Motion for Summary Judgment. Fraud in part is fraud in whole.
Final Judgment shall be hereby be entered in Defendant’s favor. Defendant is the prevailing party in this litigation, and Plaintiff shall go hence without a day.
The Court reserves jurisdiction as to Defendant’s entitlement and reasonableness of attorneys’ fees and costs.
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