24 Fla. L. Weekly Supp. 987a
Online Reference: FLWSUPP 2411MARTInsurance — Application — Misrepresentations — Rescission of policy — Omission of name of resident of household was material misrepresentation where policy would have been issued at higher premium if insured had disclosed this information — Policy was voided due to the insured’s material misrepresentation — Insurer’s motion for summary judgment granted
AMERICAN HEALTH PROVIDERS, CORP., a/a/o Mireya Martin, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 15-000033 CC 23 (04). November 7, 2016. Jason Emilios Dimitris, Judge. Counsel: Edersy Suarez, Law Office of Edersy Suarez, P.A., for Plaintiff. Kevin McAllister, Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORSUMMARY JUDGMENT RE: MATERIAL MISREPRESENTATION
THIS CAUSE, having come before the Court on October 11, 2016, upon Defendant’s Motion for Summary Judgment re: Material Misrepresentation and Request for §57.105 Sanctions, and the Court having heard argument and being fully advised in the premise finds as follows:BACKGROUND, ISSUES AND FACTS
1. On August 23, 2013, JOSE LUQUE applied for an insurance policy with WINDHAVEN INSURANCE COMPANY, issued through Royal Prestige Insurance Agency, Inc.
2. The PIP application attached to Defendant’s Motion contains language which required the named insured/applicant JOSE LUQUE to disclose any household residents aged 15 or older.
3. Defendant’s Motion asserts that there was a material misrepresentation by the named insured, JOSE LUQUE.
4. Section 627.409(1), Fla. Stat. (2003) provides that an insured’s misrepresentation may prevent recovery if a misrepresentation or omission materially affects the insurer’s risk, and would have changed the insurer’s decision as to whether to issue the policy or the premium rate at which the policy would have been issued had the true facts been known.
5. The Policy application provides that all residents over the age of 15 must be disclosed on the application, even if later excluded from the policy.
6. The named insured, JOSE LUQUE failed to list MIREYA MARTIN on the application for insurance in the section entitled “Household Resident Information” the application which states:
“Please list all residents of your household. Residents include any and all persons 15 years or older who reside full or part-time at the applicant’s residence, including any and all students living away from home within the State of Florida and persons in the Armed Services stationed within the State of Florida. Failure to provide this information may constitute a material misrepresentation, which may result in all insurance coverage being void. There is no coverage for students or persons in the Armed Services who reside or are stationed outside the State of Florida; subject to the terms and conditions of your policy. If a new resident moves into your household, it is your responsibility to notify the company by signed endorsement.”
JOSE LUQUE did not list MIREYA MARTIN.
9. In the section entitled “Applicant Questionnaire,” the application states asks:
“Are there any residents of the household age 15 or over who are not listed as drivers or excluded drivers? Yes or No.
Warning! Coverage may be declared null and void if answers are not true and correct.”
JOSE LUQUE answered “No” to this question.
10. Further, in the section entitled “Applicant’s Statement Regarding Household Residents and Licensed Drivers” the application states in pertinent part:
1. I have listed all residents of my household on this application for insurance in the section titled “Household Resident Information”
2. I understand that resident(s) include any and all person(s) 15 years or older who reside full or part-time at the applicant’s residence including any and all student(s) living away from the home within the State of Florida, and person(s) in the Armed Services stationed within the State of Florida. The definition of residents applies to both the “HOUSEHOLD RESIDENT INFORMATION” and “DRIVER LICENSE INFORMATION” section found on this application for insurance.
. . .10. I acknowledge my responsibility to notify the company, through the administrator, by signed endorsement, of anyone in the future that becomes a resident of my household and that may be eligible for benefits if involved in an accident.
. . . I fully understand that my failure to comply with any of the above may cause my policy to by null and void and could result in the denial of any claim. The insurance carrier may deny the claim on the basis of material misrepresentation.
. . . I have read and understand all of the above stated information.”
JOSE LUQUE signed his name below on August 23, 2013.
11. In reliance on the information provided in this signed application by the applicant/named insured, JOSE LUQUE, WINDHAVEN INSURANCE COMPANY issued policy number XXXXXXX4090.
12. The subject policy of insurance provides in pertinent part:
MISREPRESENTATION
Any statement or description made by or on behalf of an insured in the application are deemed representations. Any material misrepresentation, omission, concealment of fact, or incorrect statement contained in the application may prevent recovery under the contract. We may deny coverage at our option and pursuant to Florida Statute 627.409.
13. On or about May 21, 2014, MIREYA MARTIN was involved in an alleged motor vehicle accident and thereafter allegedly sought treatment with Plaintiff, who is making a claim for benefits under the subject policy.
14. Defendant attached the transcript of Examination Under Oath (“EUO”) on August 8, 2014, wherein JOSE LUQUE confirmed that MIREYA MARTIN was living with JOSE LUQUE at the policy address on the date of loss, May 21, 2014, as well as on the date that JOSE LUQUE signed the insurance application.
15. The subject PIP Application signed by JOSE LUQUE does not disclose MIREYA MARTIN as living with JOSE LUQUE.
17. [Editor’s note: paragraph numbers are as they appear in court document.] Defendant attaches the Affidavit of its Chief Underwriting Officer for Defendant to Defendant’s Motion for Summary Judgment which confirms and attests that the aforementioned misrepresentation was material because the underlying policy would not have been issued at the same premium had the applicant disclosed the residency of MIREYA MARTIN at inception. Specifically, had the Defendant been informed of the residency of MIREYA MARTIN, it would have charged an additional $411.00 for the initial 6 month policy term, thus constituting the materiality of the misrepresentation according to the definition supplied by § 627.409(1), Fla. Stat. (2003).
18. Based thereon, on September 5, 2014, but effective August 23, 2013, the Defendant rescinded the subject policy on the grounds that a material misrepresentation existed on the signed insurance application for failing to disclose MIREYA MARTIN as a household resident over the age of 15, at the time of inception, and provided a Notice of Flat Cancellation in accordance with § 627.409, Fla. Stat. (2003), along with a refund check.
19. Nothing was filed in opposition to Defendant’s Motion for Summary Judgment.
20. Additionally, Plaintiff did not file a Reply in avoidance of Defendant’s Affirmative Defense.ANALYSIS
Defendant relies on § 627.409(1), Fla. Stat. (2003) and case law provided during the hearing and herein to support its right to unilaterally rescind a contract for insurance, where there has been a material misrepresentation.
Section 627.409(1), Fla. Stat. (2003) provides:
(1) Any statement or description made by or on 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 misrepresentation, 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 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.
“An insurance company has the right to rely on an applicant’s representation in an application for insurance and is under no duty to further investigate.” Id. (citing N. Miami Gen. Hosp. v. Cent. Nat’l Life Ins. Co., 419 So. 2d 800, 802 (Fla. 3d DCA 1982); see also, Indep. Fire Ins. Co. v. Arvidson, 604 So. 2d 854, 856 (Fla. 4th DCA 1992) (“An insurer is entitled, as a matter of law, to rely upon the accuracy of the information contained in the application and has no duty to make additional inquiry.”). The general rule in Florida is that “a misstatement in, or omission from, an application for insurance need not be intentional before recovery may be denied pursuant to F.S. 627.409.” See Continental Assurance Co. v. Carroll, 485 So. 2d 406, at 408 (Fla. 1986) (emphasis added); Universal Prop. And Cas. Ins. Co. v. Johnson 114 So. 3d 1031 (Fla. 1st DCA 2013) [38 Fla. L. Weekly D950a]; Green v. Life & Health of America, 704 So.2d 1385 (Fla. 1998) [23 Fla. L. Weekly S42a]; Fabric v. Provident Life & Acc. Ins. Co., 115 F.3d 908 (11th Cir. 1997); 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)). It is not necessary that “the party making the misrepresentation should have known that it was false. . . . [I]nnocent misrepresentation is sufficient.” Johnson, 114 So. 3d 1031, 1035.
This Court agrees with other Florida Courts and rulings of the 11th Judicial Circuit of Florida in their appellate capacity that have routinely approved the practice of filing of an Examination under Oath to support a motion for summary judgment. Stinnet v. Longi, Inc., 460 So. 2d 528 (Fla. 2d DCA 1984), citing Gufford v. Morrison Trucking Co., 377 So. 2d 253 (Fla. 2d DCA 1979); Eduardo J. Garrido, D.C. P.A. a/a/o Francisco Garay v. Star Casualty Insurance Company, 23 Fla. L. Weekly Supp. 557c (Fla. 11th Cir. January 14, 2015) (court considered Francisco and Huguett Garay’s Examination Under Oath testimony and found it was admissible to support Motion for Final Summary Judgment regarding Material Misrepresentation); citing Millennium Diagnostic Imaging Center a/a/o Alejandro Gonzalez v. Allstate Property & Casualty Insurance Company, 14 Fla. L. Weekly Supp. 84a (11th Jud. Cir. Oct. 12, 2006) (court agreed as a matter of law that an examination under oath was a sworn statement provided before a court reporter while the insured was under oath and was sufficient to attach to support Defendant Allstate’s summary judgment).
Based thereon, the attached Examination Under Oath of JOSE LUQUE dated August 8, 2014, confirmed that MIREYA MARTIN was living with JOSE LUQUE at the policy address on the date that JOSE LUQUE signed the insurance application.
“[W]here a misstatement or omission materially affects the insurer’s risk, or would have changed the insurer’s decision whether to issue the policy and its terms, [section 627.409] may preclude recovery.” United Auto. Ins. Co. v. Salgado, 22 So. 3d 594, 599 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1578a]. “[A] misrepresentation is material if it does not enable a reasonable insurer to adequately estimate the nature of the risk in determining whether to assume the risk.” Singer v. Nationwide Mut. Fire Ins. Co., 512 So. 2d 1125, 1128-29 (Fla. 4th DCA 1987); see also Salgado, 22 So. 3d at 604 (holding that “the ‘law is well settled that if the misrepresentation of the insured were material to the acceptance of the risk by the insurer or, if the insurer in good faith would not have issued the policy under the same terms and premium, then rescission of the policy by the insurer is proper’ ” (emphasis added)). The Court finds that in this instance, a determination of materiality under section 627.409(1)(a) is generally a question of law based on “an objective view of what is material.” Singer, 512 So. 2d at 1129.
In the present case, the Third District Court of Appeals decision in Salgado established that the subject policy is governed under the right of rescission contained in Section 627.409, Florida Statutes (2003). Here, MIREYA MARTIN sought PIP coverage, wherein the Plaintiff is seeking payment under the subject policy. However, the policy was issued to JOSE LUQUE was based on misrepresentation causing an inaccurate risk assessment by Defendant, because it was based on a misrepresentation by JOSE LUQUE who did not disclose that MIREYA MARTIN lived with him at the time of inception. The Defendant discovered that the policy would have been issued at a higher premium if JOSE LUQUE had revealed MIREYA MARTIN as a household resident, over the age of 15, at the time of policy inception. This amounts to a material misrepresentation entitling Defendant, WINDHAVEN, to rescind the policy back to inception.
CONCLUSION
For reasons provided herein, and during the course of the Hearing on Defendant’s Motion, this Court Hereby Grants Defendant’s Motion for Summary Judgment Re: Material Misrepresentation. The subject policy was voided due to the insured’s material misrepresentation in the insurance application. During the hearing the Court reserved jurisdiction to award fees and costs under Section 57.105 Fla. Stat. of Defendant’s Motion, however, the Court has been informed that the parties have reached an agreement which resolves the need for any hearing on fees and costs in the future, and the parties further reached agreement that allows this Court to grant Defendant’s subject Motion for Summary Judgment with prejudice.
Therefore, it is Hereby Ordered and Adjudged that Defendant’s Motion for Summary Judgment is Granted thereby summarily dismissing this case with prejudice.
