24 Fla. L. Weekly Supp. 637a
Online Reference: FLWSUPP 2408GREEInsurance — Personal injury protection — Application — Material misrepresentations — Evidence — Examination under oath of insured is admissible evidence in support of motion for summary judgment — Where evidence establishes that insured misrepresented on application for PIP policy the existence of other residents of her household age 15 and older and that this misrepresentation was material to risk assessed, policy was void ab initio and no coverage is afforded
DADE INJURY REHABILITATION CENTER, INC., a/a/o Gwendolyn Green, Plaintiff, v. EQUITY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-25095 SP 23. October 18, 2016. Jason Emilios Dimitris, Judge.
ORDER GRANTING DEFENDANT’S MOTIONFOR SUMMARY FINAL JUDGMENTRE: MATERIAL MISREPRESENTATION
This Cause, having come before the Court upon Defendant’s Motion for Summary Final Judgment Re: Material Misrepresentation on September 7, 2016. The Court after reviewing the motions, the record, the applicable case law and after hearing argument of counsel for the parties, and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law:
FACTUAL BACKGROUND
On January 15, 2011, Gwendolyn Green Johnson (“named insured”) was involved in a car accident and sought treatment from Plaintiff for injuries sustained in the accident, and subsequently made claims for personal injury protection (“PIP”) benefits with Equity Insurance Company (“Equity”).
Equity denied all payment because the policy was voided ab initio due to a material misrepresentation. Specifically, the Defendant alleged that the named insured failed to list all residents of the household age fifteen years or older on the application for insurance, and further alleged that had they been disclosed, the policy would not have been issued or would have been issued at a higher premium rate.
On October 2, 2010, the named insured applied for a policy of insurance with Equity through Admiral Insurance and listed only herself on the application. Page 3, Question 10 of the policy application asks “Are there any residents of the household age 15 & over who are not listed as drivers or as excluded drivers?” This question was marked “No” and the name insured signed less than 1 inch below the question.1
Pursuant to the terms of the subject insurance policy, Defendant scheduled an Examination under Oath (“EUO”) of the name insured for March 8, 2015. At the EUO, the named insured stated that she owned the property at the address listed on the application, has lived there for over forty years and resides with her son, sister and daughter.2
ANALYSIS
The Court was tasked with determining whether an examination under oath (“EUO”) constitutes inadmissible hearsay. To answer this question, Plaintiff offered and the Court considered its previous ruling in the matter of Coral Gables Family Chiropractic Center a/a/o Milagritos and a/a/o Renzo Bossio vs. Star Casualty Insurance Company, 24 Fla. L. Weekly Supp. 222a (11th Cir. July 8, 2016), which held in part that an EUO is inadmissible evidence and does not qualify for a hearsay exception under the Florida Evidence Code.
The Defendant in response argued that an EUO has the same inherent reliability as an affidavit and is proper evidence for the court’s consideration at a motion for summary judgment. In support of this argument, the Defendant made reference to the cases of Eduardo J. Garrido, D.C., P.A. a/a/o Francisco J. Garay v. Star Casualty Insurance Co., 23 Fla. L. Weekly Supp. 557c (Fla. 11th Cir. June 21, 2016) and Millennium Diagnostic Imaging Center a/a/o Alejandro Gonzalez v. Allstate Property & Casualty Ins. Co., 14 Fla. L. Weekly Supp. 84a (Fla. 11th Cir. October 12, 2006).
Additionally, in the case of Avampato v. Markus, 245 So. 2d 676, 678 (Fla. 4th DCA 1971), the court reasoned that a sworn statement taken without the presence of Plaintiff’s counsel is probably “. . .no more or less reliable than an affidavit written in narrative form. . .” Id. at 678.
The Court is persuaded by Defendant’s argument that the EUO is a sworn statement, provided before a court reporter, while the insured is under oath and therefore constitutes admissible evidence for purposes of court consideration in summary judgment proceedings.
CONCLUSION
After review and consideration of the record evidence and Defendant’s motion for summary judgment, the Court finds that the named insured made a misrepresentation on the application of insurance by not listing all residents of the household age fifteen and over. The Defendant presented an unrebutted affidavit establishing that this misrepresentation was material to the risk assessed. Pursuant to §627.409 Florida Statutes (2014), the subject policy was voided ab initio and therefore no coverage is afforded. See United Auto. Ins. Co. v. Salgado, 22 So. 3d 594, 599-601 (Fla. 3d DCA 2009)[34 Fla. L. Weekly D1578a]; New York Life Ins. Co. v. Nespereira, 366 So. 2d 859, 861 (Fla. 3d DCA 1979); Fla. Stat. § 627.409 (2014). Based upon the foregoing analysis, the Defendant is entitled to Summary Judgment as a matter of law.
IT IS HEREBY ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is hereby GRANTED. The Court denies Defendant’s request for sanctions and retains jurisdiction for the purpose of determining any motions by the Defendant to tax fees and costs.
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1 See Policy Application attached as Exhibit A to Defendant’s Motion for Final Summary Judgment.
2At the EUO on March 8, 2011, the named insured identified Hiram Johnson, Jan Greer and Brittany Allen as residents of the insured’s household who were over the age of 15 and had lived at the policy address for 37, 15 and 22 years (respectively).
