22 Fla. L. Weekly Supp. 1101a
Online Reference: FLWSUPP 2209PEREInsurance — Personal injury protection — Application — Misrepresentations — Waiver — Insurer waived right to raise material misrepresentation defense by failing to issue refund check jointly to insured and premium financing company and by failing to timely refund all premiums to insured with interest
FOUNTAINS THERAPY CENTER, INC., (a/a/o ARIEL PEREZ), Plaintiff, vs. RESPONSIVE AUTO INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-13751 COCE (55). September 27, 2013. Sharon L. Zeller, Judge. Counsel: Michael J. Cohen, Cohen Legal Group, P.A., Weston, for Plaintiff. Charles L. Vaccaro, Vaccaro Law Firm, P.A., Davie, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT
THIS CAUSE, having come on to be heard on August 21, 2013, upon Plaintiff’s Motion for Final Summary Judgment, and the Court, having heard argument of counsel, having reviewed the Court file and being otherwise fully advised in the premises, the Court finds as follows:
This is a cause of action for payment of Personal Injury Protection benefits due Plaintiff, FOUNTAINS THERAPY CENTER, and is the consolidation of two (2) cases by way of Court order dated January 15, 20131. Defendant has raised one (1) Affirmative Defense alleging that “the subject policy under which Plaintiff is suing is void ab initio and was rescinded due to the insured, Ariel Perez and Dalmis Dominguez failure to disclose material facts on the insurance application, and due to a false statement of material fact. Specifically, the insured failed to list Ariel Perez’s prior accident of June 29, 2008 at the time the insurance application was taken out. Had the insurance company known the true facts, they would not have issued the policy for the same premium amount and/or they would have not issued the policy at all.” Defendant has stipulated that the treatment rendered was related to the accident and medically necessary and that the charges are reasonable. FOUNTAINS THERAPY CENTER submitted its Reply to Affirmative Defenses alleging that Defendant waived its right to raise a Material Misrepresentation Defense by failing to include the name of the insured on any check refunding the premium to the premium finance company and that Defendant waived its right to raise a Material Misrepresentation Defense by failing to timely refund all premiums to its insured, with interest.
In order to properly rescind an insurance contract, the insurer must take affirmative steps to place the policyholder back in his original position. Lang vs. Horne, 156 Fla. 605 (Fla. 1945); and, Bass vs. Farish, 616 So.2d 1146 (Fla. 4th DCA 1993). The insurer is required to restore the status quo by returning the premiums paid, together with interest, to the insured. Perlman vs. Prudential, 686 So.2d 1378 (Fla. 3rd DCA 1997) [22 Fla. L. Weekly D237a]. In addition, the premium refund must be sent to the insured, and in the case that the refund is made to a premium financing company, the refund check must be payable jointly to the premium finance company and the insured. Bankers Insurance Co. vs. General No-Fault Insurance, Inc., 814 So.2d 1119, 1120 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D778a]. Lastly, for a rescission to be effective, the premiums and interest must be tendered to the insured within a reasonable time after discovery of the grounds for avoiding the policy. Bankers Insurance Co. vs. General No-Fault Insurance, Inc., 814 So.2d at 1120; citing to, Leonard vs. State Farm Fire & Cas. Co., 675 So.2d 176, 179 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1165a].
RESPONSIVE waived its right to raise a Material Misrepresentation Defense by failing to issue the refund check jointly to the insured and the Premium Finance Company. In addition, RESPONSIVE has waived its right to raise a Material Misrepresentation Defense by failing to timely refund all premiums to its insured, with interest. Therefore, FOUNTAINS THERAPY CENTER is entitled to a final summary judgment. It is therefore
ORDERED AND ADJUDGED that Plaintiffs’ Motion for Final Summary Judgment is hereby granted. Plaintiff is hereby directed to submit to the Court a proposed final judgment.
__________________
1By way of the January 15, 2013 Court Order, the transfer of FOUNTAINS THERAPY CENTER, INC., (a/a/o DALMIS DOMINGUEZ) vs. THE RESPONSIVE AUTO INSURANCE COMPANY, 12-13753 COCE 53, was approved, and was consolidated with FOUNTAINS THERAPY CENTER, INC. (a/a/o ARIEL PEREZ) vs. THE RESPONSIVE AUTO INSURANCE COMPANY, 12-13751 COCE 55 for discovery purposes.
* * *
