23 Fla. L. Weekly Supp. 561a
Online Reference: FLWSUPP 2306BETAInsurance — Personal injury protection — Application — Misrepresentations — Where insured entered non-existent address as garaged location of vehicle when applying online for PIP policy, and insurer would not have issued policy online and premium would have been more than doubled if correct address had been given, insurer is entitled to void policy and deny coverage based on material misrepresentation — No merit to argument that insurer’s failure to refund premiums bars it from rescinding policy — Failure to refund premiums did not waive right to deny coverage, refund was impracticable since insurer had been given incorrect address for insured, and all premiums escheated to state when insurer was unable to make refund
MACIAS SYSTEM INC a/a/o ULISES BETANCOURT, Plaintiffs, v. GEICO GENERAL INSURANCE COMPANY, Defendants. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 13-00788 CC 25 (01). September 26, 2015. Laura Anne Stuzin, Judge. Counsel: Ulises Guinea, Barakat Legal, P.A., Coral Gables, for Plaintiff. Wesley B. Colgan III, Law Office of Haydee De La Rosa-Tolgyesi, Miami, for Defendant.FINAL SUMMARY JUDGMENT FOR DEFENDANT
THIS CAUSE having come before the Court upon Defendant’s Motion for Final Summary Judgment, and the Court having granted same by Order dated February 17, 2015, makes the following findings of fact and conclusions of law:
1. Plaintiff’s Complaint alleged a cause of action for Personal Injury Protection (“PIP”) benefits under a policy of insurance issued by Defendant, GEICO GENERAL INSURANCE COMPANY (“GEICO”), for a loss that occurred on April 22, 2012.
2. The record evidence before the Court reflects that claimant ULISES BETANCOURT DIAZ (“named insured”) or someone on his behalf applied for a policy of insurance with GEICO over the internet on April 14, 2012.
3. A GEICO policy ending in -9795 (“the policy”) was internet generated and bound with an effective date of April 15, 2012.
4. Screenshots of the April 14, 2012 online application entries (“application screenshots”) for the policy were entered into evidence as a business record pursuant to Fla. Stat. § 90.803(6) and were authenticated in the January 17, 2014 deposition of GEICO Underwriting Supervisor Christopher Marc Smith (“Mr. Smith”).
5. Mr. Smith testified that “the information from the application online is archived and stored on our computer servers, and the data that’s entered in the application is retained in the archive data” (see page 16 of Smith deposition attached to the Defendant’s Motion for Final Summary Judgment).
6. The named insured entered the garaged location of the subject vehicle on the date of policy application as the address 18940 NW 14 St., Pembroke Pines, FL 33028.
7. As per the record evidence the garaged location entered into the online application was a misrepresentation.
8. On January 6, 2015 the Defendant filed a sworn Affidavit of GEICO Investigator Mekhi Nunez.
9. The Nunez Affidavit stated in pertinent part the following:
On June 6, 2012 I attempted to verify the existence of the address listed as 18940 NW 14th St., Pembroke Pines, FL 33028. I made a thorough and diligent search for said address that included a personal canvass of the entire area of Pembroke Pines where said address should be located. I further searched the Broward County Property Appraiser website at http://www.bcpa.net/RecAddr.asp and no records of said address were found. The address 18940 NW 14th St., Pembroke Pines, FL 33028 does not exist.
10. The non-existence of the garaged address was not contradicted by the Plaintiff.
11. On January 6, 2015 the Defendant filed Records of the Florida Department of Highway Safety and Motor Vehicles (“DHSMV”) pertaining to the named insured.
12. The DHSMV records included the Division of Driver Licenses Transcript of Driver Record and the Driver and Vehicle Information Database as they pertained to the named insured.
13. Said DHSMV records were entered into evidence as public records pursuant to Fla. Stat. §§ 90.803(8) and 90.902.
14. The uncontroverted DHSMV records clearly indicate that since his original driver’s license was issued on August 13, 2010 through the last date referenced in said records (June 2, 2014) that the named insured had only ever utilized a single address that was in fact located Miami-Dade County.
15. Said DHSMV records made no reference to Pembroke Pines nor anywhere else in Broward County, Florida.
16. Underwriting Supervisor Mr. Smith testified during his January 17, 2014 deposition that this misrepresentation regarding the garaged location of the vehicle on the date of policy application was material.
17. Mr. Smith testified that due to online binding restrictions for the relevant time-period GEICO would not have issued the policy to the named insured over the internet.
18. Mr. Smith further testfiied that had the named insured applied over the telephone utilizing the Miami address that the premium would have more than doubled from that which was quoted using the non-existent Pembroke Pines address.
19. Florida Statute Section 627.409 (2012) states in pertinent part:
Representations in applications; warranties
(1) Any statement or description made by or behalf of an insured or annuitant in an application for an insurance policy or annuity contract, or in negotiations for a policy or contract, is a representation and is not a warranty. A misrepresentation, omission, concealment of fact, or incorrect statement may prevent recovery under the contract or policy only if any of the following apply:
(a) The misrepresenation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer.
(b) If the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss.
20. The seminal case regarding policy rescission in the PIP context is United Auto. Ins. Co. v. Salgado 22 So.3d 594 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1578a] (holding “Because Florida Motor Vehicle No-Fault Law policies are not expressly excluded from Part II of Chapter 627, they are therefore, governed by that part, including section 627.409” Id. at 601).
21. The Salgado Court reaffirmed that “Florida Law indeed gives an insurer the unilateral right to rescind its insurance policy on the basis of misrepresentation in the application for insurance” Id. at 599 (citing Union Am. Ins. Co. v. Fernandez, 603 So.2d 653 (Fla. 3d DCA 1992).
22. An insurer is entitled, as a matter of law, to rely on the accuracy of the information contained in the application and has no duty to make additional inquiry. Independent Fire Ins. Co. v. Arvidson, 604 So.2d 854 (Fla. 4th DCA 1992) (citing New York Life Ins. Co. v. Nespereira, 366 So.2d 859 (Fla. 3d DCA 1979).
23. In the instant case the undisputed facts show that the named insured entered a non-existent address into the application and that the subject vehicle was not garaged in Pembroke Pines, Florida on the date of policy application.
24. The record evidence further shows that this misrepresenation as to the garaged location of the subject vehicle was in fact material as contemplated by Fla. Stat. 627.409.
25. Therefore, as the misrepresentation on the application was material the Defendant is entitled, as a matter of law, to void the policy ab initio and deny coverage (see Union Am. Ins. Co. v. Fernandez, 603 So.2d 653 (Fla. 3d DCA 1992) which held “[i]f such a material misrepresentation is established at trial, the subject insurance policy would be void ab initio and accordingly, there would be no liability insurance coverage for the subject accident” Id. at 653).
26. The Plaintiff argued that due to the fact that the Defendant did not refund the premium paid by the named insured that the Defendant was barred from rescinding the policy. This Court holds that this position is without merit pursuant to the authority of Gonzalez v. Eagle Ins. Co., 948 So.2d 1 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2287a] (stating “the failure to return the premiums did not waive Eagle’s right to deny coverage. In U.S. Sec. Ins. Co. v. Figueroa, 917 So.2d 901, 903 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2447a], we held that ‘section 627.7282(1)(c) does not require the insurer to return the unearned premium as a condition precedent to canceling the policy.’ If we did not make the return of the unearned premium a condition precedent where the statute specifically provided for a refund of the unearned premiums, we certainly are not going to require it where the statute is silent” (Gonzalez at 3-4, referring to Fla. Stat. § 627.409).
27. Given the nature of the grounds for this particular policy rescission, i.e. that a non-existent address was submitted by the named insured to the Defendant, the return of the premium was clearly impracticable. Pearlman v. Prudential Ins. Co., 686 So.2d 1378, 1380 [22 Fla. L. Weekly D237a] (holding “parties to a rescinded agreement are required, insofar as possible, to restore the status quo” (emphasis added)).
28. Furtheremore, Underwriting Supervisor Mr. Smith testified in his January 17, 2014 deposition that GEICO had attempted to notify the named insured of the policy rescission and to refund the premium to no avail and as such all monies paid by the named insured had since escheated to the State of Florida.
29. Plaintiff, as assignee of ULISES BETANCOURT DIAZ, stands in the shoes of said claimant for all rights, responsibilities, and defenses under the rescinded insurance policy and thus possesses no greater rights than that of its assignor. State Farm & Casualty Insurance Company v. Ray, 556 So.2d 811, 813 (Fla. 5th DCA 1990).
30. The subject GEICO policy ending in -9795 was rescinded pursuant to Fla. Stat. § 627.409 and United Auto. Ins. Co. v. Salgado 22 So.3d 594 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1578a] and thus void ab initio.
31. This Court finds that there exists no genuine issue of material fact and that pursuant to Rule 1.510 Fla.R.Civ.P. that the Defendant is entitled to judgment as a matter of law.
IT IS ADJUDGED:
Defendant is the prevailing party in the above-referenced matter as it is entitled to judgment as a matter of law. Plaintiff shall take nothing by way of this action and Defendant shall go hence without day. The issue of Defendant’s attorneys fees and costs pursuant to the Defendant’s Proposal for Settlement served upon Plaintiff pursuant to Rule 1.442 Fla.R.Civ.P. is hereby rendered moot as the parties have resolved same amicably.
