23 Fla. L. Weekly Supp. 854a
Online Reference: FLWSUPP 2308AMARInsurance — Personal injury protection — Material misrepresentation on application — Signature on non-business use statement — Insured did not, as matter of law, drive her vehicle for delivery, business or commercial purposes where she worked as occupational therapist who traveled to patients’ schools and residences to perform therapies, but did not transport patients or perform therapies in her vehicle
NANCY AMAR, Plaintiff, vs. STAR CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 14-012599 CC 05 (01). January 20, 2016. Shelley J. Kravitz, Judge. Counsel: Howard W. Myones, Anidjar & Levine, P.A., Fort Lauderdale, for Plaintiff. Jessica Z. Martin and Jason V. Lopez, Miami, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT ON HERPETITION FOR DECLARATORY RELIEF ASTO COVERAGE UNDER INSURANCE POLICY
THIS CAUSE, having come before the Court, regarding Plaintiff’s Motion for Final Summary Judgment on her Petition for Declaratory Relief as to Coverage Under Insurance Policy, and the Court having been otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED that said Motion is hereby GRANTED IN PART. This action arose out of a February 20, 2014 motor vehicle accident. Subsequent to the accident, the Plaintiff, Nancy Amar made a claim for personal injury protection benefits. Her insurer, Star Casualty Insurance Company, canceled her insurance policy ab initio alleging that the Plaintiff used her insured vehicle for business use and failed to disclose that information on her application for insurance. In the application, Nancy Amar signed a Statement of Non-Business Use which stated:
I hereby state that each vehicle listed on this application, and any vehicle endorsed to my policy at a later date, are not and will not, be used for delivery, business, or commercial purposes other than commuting to / from work locations. During the policy term, if I begin using any vehicle listed on this application or any vehicle endorsed to my policy at a later date for delivery, business or commercial purposes other than commuting to / from work locations, I must notify the Company in writing. I understand that coverage for this type of vehicle is not provided under my policy. Any losses resulting from each vehicle listed on this application or any vehicle endorsed to my policy at a later date being used for delivery, business or commercial purposes other than commuting to / from work locations may be denied by the Company.
Pursuant to the testimony of Eduardo Mena and Barbara Peoli, representatives of the Defendant, “Business Use” and “Course and Scope of Employment” are not defined anywhere else in the Policy. The undisputed facts indicate that the Plaintiff, Nancy Amar, is a pediatric occupational therapist who performs therapy on children with autism and other developmental delays. She performs these therapies in her office, at schools and at patients’ homes. She uses the vehicle on the policy to drive to the schools and homes. She does not use her vehicle to transport the patients or perform any therapies in her vehicle. The Defendant provided no evidence that Ms. Amar used her vehicle for business use other than the allegation that she drove to and from her work locations.
The Court finds that based on the clear and unambiguous language of the Statement of Non-Business Use there is no dispute as to any material fact and the court must determine whether the Plaintiff committed a material misrepresentation on her application by failing to indicate she used the vehicle for business use. Based on the undisputed facts presented before the Court, the Court finds that Ms. Amar did not use her vehicle for delivery, business or commercial purposes. Exclusionary clauses for business use do not apply when the Plaintiff is not driving for work, but to work. Caballero v. Oak Casualty Ins. Co., 2 Fla. L. Weekly Supp. 578c (Fla. 11th Jud. Cir. App., Miami-Dade County, December 2, 1994). Furthermore, coming and going from the place of work does not arise out of and in the course of employment. See Caballero. Here, the court finds that because Ms. Amar did not transport patients, did not receive reimbursement for driving expenses, gas, and/or mileage, and did not use her vehicle for any work purpose other than commuting to and from work locations, Ms. Amar did not use the vehicle for business use and did not commit any material misrepresentation on her application for insurance.
The Court grants the Plaintiff’s Motion as a Partial Summary Judgment as to the Defendant’s Affirmative Defense of “There is no coverage for this loss as Nancy Amar submitted material misrepresentations on her application for insurance, in that Nancy Amar used the vehicle for business use in violation of the insurance policy, but for which Defendant would not have issued the subject insurance policy had Defendant been aware that Nancy Amar used the vehicle on the policy of insurance for business use.” The Plaintiff must still establish and prove damages as alleged in her Complaint.
