24 Fla. L. Weekly Supp. 222a
Online Reference: FLWSUPP 2403BOSSInsurance — Personal injury protection — Application — Material misrepresentations — Person visiting and staying with insured and also staying with other friends and relatives while vacationing in United States from Peru was not “resident” of insured’s household whom insured was required to disclose on application for PIP policy — Evidence — Examination under oath of insured is inadmissible hearsay where statement was not given under oath at trial or other legal proceeding and was not subject to cross-examination — Hearsay exceptions applicable to statements of parties are not applicable to statement of insured who is assignee, not party to action
CORAL GABLES FAMILY CHIROPRACTIC CENTER a/a/o Milagritos Pena and a/a/o Renzo Bossio, Plaintiffs, vs. STAR CASUALTY INSURANCE COMPANY, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County. (Consolidated). Case No. COCE 14-7045 SP (23) 04. July 8, 2016. Jason Emilios Dimitris, Judge. Counsel: Diana I. Castrillon, Cecere Santana, P.A., Sunrise, for Plaintiff. Brian Goldstein, for Defendant.
ORDER GRANTING PLAINTIFF’SMOTION FOR FINAL SUMMARY JUDGMENT ANDDENYING DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT
THIS CAUSE having come before this Court on Plaintiff’s Motion For Final Summary Judgment and Defendant’s Motion for Summary Judgment and the Court having heard arguments of counsel and being otherwise fully advised on the premises, hereby finds as follows:
The Court makes the following findings of fact:
1. This is an action involving personal injury protection (“PIP”) benefits.
2. The claimants were injured in a traffic accident which occurred on May 27, 2013 and in which Milagritos Pena (hereinafter “Pena”) was the driver and Renzo Bossio (hereinafter “Bossio”), a passenger.
3. At the time of such accident, the Defendant had issued an insurance policy, which policy provided Personal Injury Protection insurance to Pena, the named insured. The passenger, Bossio, was not otherwise insured for Personal Injury Protection benefits through any other source.
4. Pena and Bossio suffered injuries as a result of the subject motor vehicle accident.
5. From 5/29/2013 through 8/5/2013, Plaintiff provided medical services to both Pena and Bossio each totaling $4,855.00, for a grand total of $9,710.00. As consideration for the treatment rendered, Plaintiff accepted assignments of benefits from Pena and Bossio.
6. Plaintiff submitted its bills for services to the Defendant, but the bills were not paid. As a result, Plaintiff instituted these actions (which were later consolidated into one action) to collect the assigned benefits together with statutory interest, attorney’s fees and costs.
7. Defendant filed its answer to both cases raising the following affirmative defense:
Defendant, Star Casualty, affirmatively alleges that the named insured, Milagritos Pena materially misrepresented the information on her application for the subject motor vehicle insurance policy issued by Defendant and that the policy was revoked and premiums refunded to the insured based on this material misrepresentation. As such, there is no coverage or policy under which Plaintiff is entitled to no fault benefit or under which Plaintiff can bring forth this suit. To wit: Milagritos Pena failed to disclose all household members. During the course of the investigation it was discovered the Renzo Bossio resided at the policy address. Milagritos Pena specifically initialed and signed “no” to question #12 on the application of insurance which read, “any residents of your household (licensed or not) that have NOT been disclosed open this application.” Based on this material misrepresentation, Defendant rescinded the policy issued a refund draft of the policy premiums to Milagritos Pena.
8. Plaintiff submitted the affidavit of Dr. Jenny Caceres, D.C. who attested to the fact that the services provided by the Plaintiff were reasonable, related and necessary as a result of the subject automobile accident. The Defendant did not file an opposing affidavit or provide any admissible evidence to countervail said affidavit of Dr. Caceres.
9. The March 3, 2015 deposition of Edward Mena, the Defendant’s litigation adjuster, confirmed that the only reasons why Plaintiff’s bills were not paid was due to the coverage issue regarding the alleged material misrepresentation of the insured, Pena, as outlined in their affirmative defense. Mr. Mena further confirmed in his deposition, that the application for insurance coverage attached to the Plaintiff’s Motion for Summary Judgment as Exhibit C, does not define the words “resident” or “reside.”
10. At the time of the accident, it is undisputed that Pena resided at 3555 S.W. 3rd Avenue, Miami, Florida 33145. It is further undisputed that Bossio traveled to the United States from Peru on a temporary 6-month visa and, while in the United States, he stayed at the home of Pena, as well as, that of other family members and friends. These facts were established by the deposition of Pena that was taken on April 7, 2016.
11. On July 2, 2013 Milagritos Pena submitted to an Examination Under Oath (“EUO”). The Defendant herein filed a Motion for Summary Judgment citing said EUO as its sole evidence in support thereof and in furtherance of their affirmative defense of an alleged material misrepresentation by the insured.
The Court makes the following conclusions of law:
1. Plaintiff’s affidavit of Dr. Jenny Caceres, D.C. states that the services provided by the Plaintiff were reasonable, related and necessary as result of the subject automobile accident. As such, the affidavit establishes a prime facie case. Unless the Defendant produced competent evidence contrary to the affidavit of the Dr. Caceres, then summary judgment should be granted on the issue of reasonableness, relatedness and necessity of the medical services provided by the Plaintiff. United Auto Ins. Co. v. Neurology Assoc. Grp. Two, Inc. (aao Nicholas Cabello), 11 Fla. L. Weekly Supp. 204b (Fla. 11th Jud. Cir. Jan. 13, 2004). The Defendant failed to produce any sufficient contrary evidence. Accordingly, there are no genuine issues of material fact in dispute as to the reasonableness, relatedness and medical necessity of the treatment rendered by the Plaintiff.
2. As to the affirmative defense of material misrepresentation, the Plaintiff produced the deposition of Pena wherein she acknowledged that Bossio was staying at her home during the times at issue in this matter, but that Bossio was also visiting with and staying with other friends and relatives while he was vacationing in the United States from Peru. Accordingly, Pena testified that Bossio did not “reside” with her during the subject times at issue. The application for insurance does not define the word “resident” or “reside.” Under Florida law, ambiguities in insurance contracts are construed against the insurer and in favor of coverage. Taurus Holdings., Inc., et al. v. United States Fidelity and Guarantee Co., et al., 913 So. 2d 528 (Fla. 2005)[30 Fla. L. Weekly S633a]. “If the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage, the insurance policy is considered ambiguous.” Id.
3. Notably, the Florida Supreme Court case of Kiplinger v. Kiplinger, 147 Fla. 243 (Fla. 1941) as cited in Trezza v. State Farm Mutual Auto Ins. Co., 519 So. 2d 649 (Fla. Dist. Ct. App. 1988), held that “residency” is a question of law and fact, to be determined on a case-by-case basis. However, “when the facts are essentially undisputed, whether those facts fit within the policy definition is a question of law. . .” Id. The Kiplinger Court cited to other cases when it defined “resident” as “one who lives at a place with no present intention of removing therefrom.” (internal citations omitted). It is clear from the record that Bossio resided in Peru and intended to return to Peru and was simply a temporary guest of Pena.
4. This Court notes that if it were to rule in favor of the Defendant’s position, it would essentially be finding that any time someone has an overnight guest at their home at the time they are applying for or renewing insurance coverage, they would be required to carry automobile insurance coverage on the guest’s behalf or risk losing their coverage. This conclusion would be contrary to public policy, as it would require multiple individuals, while hosting the same overnight guest over a temporary period of time, to carry insurance coverage for that same sporadic overnight guest.
5. As to the EUO of Pena that was offered as evidence by the Defendant, this Court rules that said EUO is inadmissible evidence. The EUO of Pena was not given under oath at trial, hearing or other legal proceeding and was not subject to cross-examination. Further, Pena is not a party to this action, she is the assignee and thereby simply a lay witness. Accordingly, any exceptions to the hearsay rules of evidence that would apply to a party pursuant to the Florida evidence code, do not apply to the EUO of Pena. Therefore, the EUO of Pena does not create a genuine issue of material fact for any of the issues before the Court.
6. Based on the foregoing, the Defendant has not provided any competent, substantial, admissible evidence to the Court for consideration in opposition to the Plaintiff’s Motion for Summary Judgment or in support of Defendant’s Motion for Summary Judgment.
It is ORDERED and ADJUDGED that Plaintiff’s Motion for Final Summary Judgment is GRANTED and Defendant’s Motion for Final Summary Judgment is DENIED. Defendant is ordered to pay eighty percent (80%) of all bills as outlined, plus applicable interest. Furthermore, Plaintiff is entitled to reasonable attorney’s fees and costs pursuant to Florida Statute s. 627.428 for securing these PIP benefits.
