24 Fla. L. Weekly Supp. 76a
Online Reference: FLWSUPP 2401CGONInsurance — Personal injury protection — Rescission — Material misrepresentations on application — Where insured misrepresented to insurer at time of application that he had continuous insurance coverage for previous 12 months and insured would not have been eligible for any coverage by insurer had true facts been known, insurer was entitled to rescind policy
MA-R MEDICAL CENTER, INC. A/A/O CHRISTIAN GONZALEZ, Plaintiff, vs. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami Dade County. Case No. 09 04385 SP 26 (03). December 9, 2015. Gloria Gonzalez-Meyer, Judge. Counsel: Maria E. Corredor, Law Offices of Corredor, Husseini & Snedaker, Miami, for Plaintiff. Jessica Zlotnick Martin, Roig Lawyers, Deerfield Beach, for Defendant.
ORDER GRANTING DEFENDANT’SMOTION FOR SUMMARY JUDGMENT ANDENTRY OF FINAL JUDGMENT
THIS matter having come to be heard on November 12, 2015, after due notice to the parties, on Defendant’s, State Farm Fire and Casualty Company, Motion for Final Summary Judgment, the Court having heard argument of counsel and the Court having been otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion is hereby GRANTED.
2. This is an action by the Plaintiff, MA-R Medical Center, Inc. a/a/o Christian Gonzalez (“Plaintiff”), to recover alleged overdue Personal Injury Protection (PIP) benefits from the Defendant, State Farm Fire and Casualty Company (“Defendant”).
3. The issue before the Court on Defendant’s Motion for Summary Judgment is whether Christian Gonzalez made a material misrepresentation during the application process which, as a matter of law, allows the Defendant to rescind its insurance policy thereby precluding recovery by the Plaintiff.
4. At oral argument, the Plaintiff did not contest the legal standard for rescission, but rather argued that genuine issues of material fact exist to preclude the entry of summary judgment for the Defendant.
5. After careful review of the record, the Court disagrees with the Plaintiff’s position, and finds that the Defendant is entitled to summary judgment as a matter of law.
Undisputed Facts
6. A policy of insurance was issued by the Defendant to Christian Gonzalez on January 27, 2009, which provided PIP coverage to Mr. Gonzalez, insuring a 1979 Oldsmobile Cutlass.
7. The same day of the policy inception, Mr. Gonzalez was allegedly involved in an automobile accident. Mr. Gonzalez made a claim for PIP benefits and, thereafter, the Plaintiff submitted charges to the Defendant for medical services.
8. The testimony filed of record in this case establishes that during its investigation of this PIP claim, the Defendant discovered that, at the time of his application for insurance, Mr. Gonzalez presented a false insurance card to the Defendant, purportedly issued by United Automobile Insurance Company (UAIC); the false insurance card represented that Mr. Gonzalez and the 1979 Oldsmobile Cutlass were insured by UAIC from July 10, 2008 through July 10, 2009. At the time of the application for insurance, Mr. Gonzalez also misrepresented to the Defendant that he and the 1979 Oldsmobile Cutlass had been insured with UAIC for the past two and a half year period and that the 1979 Oldsmobile Cutlass had not been driven uninsured in the past twelve months.
9. The testimony filed of record in this case further establishes that the misrepresentations made by Mr. Gonzalez, namely that he had continuous insurance coverage for the previous twelve month period prior to the application, was material to the Defendant’s acceptance of the risk because if the true facts had been known, Mr. Gonzalez’ application was ineligible for any type of State Farm Insurance and, therefore, the Defendant would not have written the subject policy. Based on the material misrepresentation, the Defendant rescinded the policy and refunded the premiums paid.
Legal Standard
10. The right of rescission contained in section 627.409, Florida Statutes (2009), applies to Personal Injury Protection (PIP) contracts issued pursuant to the Florida Motor Vehicle No-Fault Law. See United Auto. Ins. Co. v. Salgado, 2009 WL 2382408 (Fla. 3d DCA 2009), 34 Fla. L. Weekly D1578a (August 5, 2009).
11. Section 627.409(1), Representations in applications; warranties., Florida Statutes (2009), states:
(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 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.
12. The right of rescission contained in section 627.409, Florida Statutes, is “an unambiguous codification” of the principal of law that a contract issued on a mutual mistake of fact is subject to being voided. Salgado, 2009 WL 2382408; see also Continental Assurance Co. v. Carroll, 485 So.2d 406 (Fla. 1986) (holding that the plain meaning of Section 627.409, Florida Statutes, requires that where the insurer would have altered the policy’s terms had it known the true facts, or where the misstatement materially affects the risk, even an unintentional misrepresentation in an application for insurance will void the subject policy).
13. Pursuant to section 627.409, Florida Statutes (2009), where an applicant for insurance makes a misrepresentation that is material to the risk assumed by the insurer or the insurer in good faith would not have issued the policy or would have done so only on different terms if the insurer had known the true facts, the misrepresentation shall prevent recovery under a policy written in reliance on the misrepresentation. See Salgado, 2009 WL 2382408. See Carroll, 485 So.2d at 406 (applying the plain meaning of Section 627.409, Florida Statutes.)
14. Moreover, Florida law gives an insurer the unilateral right to rescind its insurance policy on the basis of misrepresentation in the application for insurance. Gonzalez v. Eagle Ins. Co., 948 So.2d 1, 2 (Fla. 3d DCA 2006)[31 Fla. L. Weekly D2287a]; see also Towers v. Clarendon Nat’l ins. Co., 927 So.2d 913 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D131e]. An insurer has the right to rely on an applicant’s representations in an application for insurance and is under no duty to further investigate. North Miami Gen. Hosp. v. Central Nat’l Life Ins. Co., 419 So.2d 800 (Fla. 3d DCA 1982); see also Indep. Fire Ins. Co. v. Arvidson, 604 So.2d 854 (Fla. 4th DCA 1992); Salgado, 2009 WL 2382408.
15. A material misrepresentation in an application for insurance is an absolute defense to the enforcement of the policy. See Carroll, 485 So.2d at 406. Where a material misrepresentation is established, the policy is void ab initio and, accordingly, there would be no insurance coverage for the subject accident. See United Am. Ins. Co. v. Fernandez, 603 So.2d 653 (Fla. 3d DCA 1992); see also Salgado, 2009 WL 2382408; Carroll, 485 So.2d at 406.
Therefore the Defendant’s Motion for Summary Judgment is GRANTED and Final Judgment is hereby by entered on behalf of the Defendant, State Farm Fire and Casualty Company. The Plaintiff, MA-R Medical Center, Inc. a/a/o Christian Gonzalez, shall take nothing by this action and the Defendant shall go hence without day. The Court retains jurisdiction for the purpose of determining any motion by the Defendant to tax attorney’s fees and costs.
