24 Fla. L. Weekly Supp. 749a
Online Reference: FLWSUPP 2409PONDInsurance — Personal injury protection — Application — Material misrepresentations — Insured’s failure to disclose daughter residing at insured’s secondary place of residence did not constitute material misrepresentation on application for PIP policy — Application that requests that insured disclose all residents of “your” household and all persons who reside at applicant’s residence is ambiguous and must be construed in favor of insured
MILLENIUM HEALTHCARE DIAGNOSTICS, INC., D/B/A FLORIDA OPEN MRI, a/a/o Letitia Ponder, Plaintiff, vs. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 13-23754 COCE (50). October 27, 2016. Peter B. Skolnik, Judge. Counsel: Steven Lander, Lander, Dalal & Associates, PL, Fort Lauderdale, for Plaintiff. Brigid Napier, Windhaven Managers, Miami, for Defendant.
ORDER ON PLAINTIFF’S AMENDED MOTIONFOR PARTIAL SUMMARY JUDGMENT
THIS MATTER, having come before the Court on October 19, 2016 for hearing on Plaintiff’s Amended Motion for Partial Summary Judgment as to Defendant’s Affirmative Defense, and the Court having reviewed the motion, the entire Court file, and the relevant legal authorities; having heard argument, having made a thorough review of the matters filed of record; and having been otherwise sufficiently advised in the premise, the Court finds as follows:
This case involves Windhaven’s denial of Personal Injury Protection benefits to an insured under the policy based its interpretation of its policy and §627.409, Fla. Stat. On or around February 22, 2016, Windhaven issued a policy of insurance to its named insured, Evelyn Sutton (“Ms. Sutton”). On June 23, 2013, Letitia Ponder (“Ms. Ponder”), the named insured’s daughter was involved in a motor vehicle accident while driving one Ms. Sutton’s insured vehicles. As a result of the June 23, 2013 date of loss, Ms. Ponder sought medical treatment for injuries sustained. Millenium Healthcare Diagnostics, Inc. d/b/a Florida Open MRI provided diagnostic services to Ms. Ponder on July 29, 2013. Windhaven denied Millenium Healthcare Diagnostics, Inc. d/b/a Florida Open MRI claim, claiming that because Ms. Ponder was an undisclosed household member of Ms. Sutton, it rescinded the applicable policy of insurance, which otherwise would have covered the June 23, 2013 loss.
Plaintiff contended that Ms. Sutton did not materially misrepresent her household residents. Specifically, Ms. Sutton had two places of residence when the policy application was filled out; one located at 228 NW 15 Ct. Pompano Beach, Florida 33069 (primary residence), and one located at 1050 NW 5th Ave. Pompano Beach, Florida 33040 (secondary residence). According to the residence disclosed/used for purposes of establishing insurance, Ms. Ponder was not a resident of that household, i.e, 228 NW 15 Ct. Pompano Beach, Florida 33069 (the address listed on policy application). Ms. Ponder resided at 1050 NW 5th Ave. Pompano Beach, Florida 33040, which happens to Ms. Sutton’s secondary residence. Alternatively, Plaintiff held the position that Windhaven’s policy application was ambiguous in context.
Windhaven contended that Ms. Sutton was required under the terms of the policy and application to disclose all household members of all of Ms. Sutton’s residences. Windhaven held the position that Ms. Sutton’s failure to disclose all household members for all of Ms. Sutton’s residences constituted a material misrepresentation. Therefore, Windhaven claimed that it was proper to rescind the applicable policy of insurance.
In support of its Amended Motion for Summary Judgment, Plaintiff brought forth an affidavit of the named insured, Ms. Sutton, which properly authenticated all attached exhibits [Editor’s Note: Attachments omitted]. Windhaven did not file any evidence in opposition as required by Rule 1.510, Fla. R. Civ. P.Conclusions of Law
Plaintiff, in support if its Motion for Summary Judgment, presented an affidavit of the named insured that clearly and unequivocally stated that Ms. Sutton’s primary place of residence at the time of policy inception was 228 NW 15 Ct. Pompano Beach, Florida 33069, and that her daughter, Ms. Ponder resided at 1050 NW 5th Ave. Pompano Beach, Florida 33040, which happened to be Ms. Sutton’s secondary place of residence. The Declaration page attached as an exhibit to both Plaintiff’s Motion for Summary Judgment and Ms. Sutton’s affidavit expressly state that 228 NW 15 Ct. Pompano Beach, Florida 33069 is the named insured’s principal address. Further, Ms. Sutton’s vehicle registration supports the conclusion that 228 NW 15 Ct. Pompano Beach, Florida 33069 is her primary place of residence. Based upon the foregoing, this Court finds that no material misrepresentation was made on the policy application. Further, this Court further finds Windhaven’s policy application to be ambiguous in context, for the reasons stated below.
Under contra proferentem, any ambiguity, inconsistency, or conflict is construed in favor of the insured and against the drafter of the policy, i.e., the insurer. See U.S Fidelity Guaranty Co., v. Rood Investments, Inc., 410 So.2d 1373, 1374 (Fla. 5th DCA 1982); Eduardo J. Garrido, D.C. P.A., a/a/o Huegett Garay, v. Star Casualty Ins. Co., Case No. 09-1104CC26 (3)(Miami-Dade Order). The Flores Court stated the proposition this way: “[a]s a fundamental proposition, where the language in an insurance policy is subject to differing interpretations, the policy language “should be construed liberally in favor of the insured and strictly against the insurer.” Flores v. Allstate Ins. Co., 819 So. 2d 740, 744 (Fla. 2002) [27 Fla. L. Weekly S499a]; State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla. 1998) [23 Fla. L. Weekly S527a]. See Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000) [25 Fla. L. Weekly S211a]. Moreover, it is axiomatic that “[i]f the relevant policy language is susceptible to more than one reasonable interpretation, the insurance policy is ambiguous.” Auto-Owners, 756 So.2d at 34; see Mercury Ins. Co. of Florida v. Markham, 36 So. 3d 730, 733 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D870a] (Stating that a question is ambiguous when it is susceptible to more than one response.); Gaskins v. Gen. Ins. Co. of Fla., 397 So.2d 729, 731 (Fla. 1st DCA 1981) (“Any ambiguity in the [policy] application is to be resolved against the insurer.”). “Nevertheless, [i]nsurance contracts must be read in light of the skill and experience of ordinary people, and be given their everyday meaning as understood by the man on the street.” Ergas v. Universal Prop. & Cas. Ins. Co., 114 So. 3d 286, 288 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D900a] (Quoting Keen v. Fla. Sheriffs’ Self-Insurance Fund, 962 So.2d 1021, 1023 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D1900a] and Mason v. Fla. Sheriffs’ Self-Insurance Fund, 699 So.2d 268, 270 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D1952a]).
Windhaven’s policy application states:
Please list all residents of your household1. Residents include any and all persons 15 years or older who reside2 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.
A review the applicable policy language indicates that the phrase “all resident of your household” implies that the insured is to list all persons who live in the same home, under one roof, and compose a social unit in a particular place. The question does not ask an insured to list all persons who live in all of the insured households (emphasis added).
Further, Defendant’s policy by using terms, such as, household and reside appears to indicate that the question asks insureds to list all persons who permanently or continuously dwell under the same roof and compose a social unit.3 However, the policy application also asks the insured to list all persons in the “applicants residence.” This Court finds that the terms in the aforementioned question directly conflict with each other. Furthermore, the term “include” implies that more than one definition is being attributed to Defendant’s definition of resident4. As such, Defendant’s policy application provision when read by a reasonable person in the position of the insured, is reasonably susceptible to more than one construction or interpretation. A reasonable insured could read Defendant’s policy application in at least one (1) of three (3) different ways: (1) defining Household Resident’s as those domiciled with the named insured; (2) defining Household Resident’s as inclusive of all members living in all the insured’s residences or (3) defining Household Resident’s as those who live at the address listed on the subject policy application.
Considering the evidence presented5, it is hereby, ORDERED AND ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment as Defendant’s Affirmative Defense of Material Misrepresentation, is hereby GRANTED.
__________________
1Household is defined as people in a family or other group that are living together in one house; those who dwell under the same roof and compose a family; a social unit composed of those living together in the same dwelling. Merriam-Webster Dictionary, available at http://www.merriam-webster.com/dictionary/household.
2Reside is defined as “to dwell permanently or continuously; to occupy a place as one’s legal domicile.” Merriam-Webster Dictionary, available at http://www.merriam-webster.com/dictionary/ reside.
3It is common practice and usually understood that the applicant/insured is to list all persons residing at the address listed on the policy application.
4Include means “to contain as part of something.” Black’s Law Dictionary 880 (10th Ed. 2014). Thus, the term “include” as used by the Defendant, implies that everything coming thereafter is in essence, only a portion of a greater whole.
5After careful review, this Court disregarded mere conjecture and speculation, and considered the evidence presented by the parties.
