22 Fla. L. Weekly Supp. 468b
Online Reference: FLWSUPP 2204ORTIInsurance — Personal injury protection — Application — Misrepresentations — Where PIP policy provides that it is only void ab initio if there is knowing concealment or misrepresentation of material fact, disputed factual issue as to whether insured knowingly intended to conceal identity of other members of household in application precludes entry of summary judgment
DR. BROCK MATIESON, D.C., P.A., as assignee of YARELYS ORTIZ, Plaintiff, vs. AMERICAN COLONIAL INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 13 CC 008219, Division L. DR. BROCK MATIESON, D.C., P.A., as assignee of ANGELICA TRINIDAD-ROJAS, Plaintiff, vs. AMERICAN COLONIAL INSURANCE COMPANY, Defendant. Case No. 13 CC 008220, Division L. July 7, 2014. Honorable Kim Hernandez Vance, Judge. Counsel: Xavier J. Jackman and James R. Collins, Jr., Westchase Legal Group, Tampa, for Plaintiff. Douglas LaPointe, Cameron, Hodges, et. al., Orlando, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on June 24, 2014 at 1:30 P.M. upon Defendant, AMERICAN COLONIAL INSURANCE COMPANY’S (“Plaintiff” [sic] or “American Colonial”) Motion for Summary Judgment (the “Motion”) and Plaintiff’s Response/Motion in Opposition to the Defendant’s Motion for Summary Judgment (the “Response”). The Court, having reviewed the Defendant’s Motion, Plaintiff’s Response, and the Court record, having heard the argument of counsel for both the Plaintiff and the Defendant, and being otherwise fully advised as to the premises, finds as follows:
1. Plaintiff has raised several arguments in support of its argument that summary judgment in favor of the Defendant is either not supported or premature; however, this Court need not and does not rule on all of them in order to rule on the Defendant’s Motion.
2. Under the policy of insurance provided to the Court by the Defendant as an exhibit to the Defendant’s Motion (the “Policy”), the Policy is only void ab initio where there is a knowing concealment or misrepresentation of material fact or circumstance or fraudulent conduct during the application process. See Exhibit C to Plaintiff’s Motion at page 23.
3. Under Florida law, where a policy of insurance provides for greater coverage or greater benefit to the insured than the governing statute, then the terms of the policy control. See Strickland Imports, Inc. v. Underwriters at Lloyds, London, 668 So.2d 251 (Fla. 1st DCA 1996) [21 Fla. L. Weekly D422b]. See also Universal Underwriters Ins. Co. v. Morrison, 574 So.2d 1063 (Fla. 1990) (insurer may offer greater coverage than the statutorily required minimum).
4. As the Policy submitted to the Court for consideration by the Defendant requires an element of knowing concealment or misrepresentation, which standard is more stringent and provides greater protections to the insured than Fla. Stat. § 627.409 upon which Defendant’s Motion is based, the terms of the Policy must supplant the provisions of the statute.
5. Applying this necessary legal framework whereby the Policy language controls, whether or not the insured knowingly intended to conceal the identity of other members of her household in her application for coverage is a disputed issue of material fact which precludes the entry of summary judgment at this time.
WHEREFORE IT IS ORDERED AND ADJUDGED THAT:
(1) Defendant’s Motion for Summary Judgment is DENIED.
(2) The Court retains jurisdiction consider future motions on other grounds and for a trial on the merits of the case.
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