25 Fla. L. Weekly Supp. 180a

Online Reference: FLWSUPP 2502AUGUInsurance — Personal injury protection — Application — Misrepresentations — Where PIP policy is ambiguous as to whether resident relatives 15 years of age or older are only required to be disclosed if they are regular drivers of insured vehicles, and ambiguity is heightened by headings of column for entry of information that designate each entry as “Drv. #” and request details of licensure for each driver, ambiguity is resolved in favor of insured to afford coverage to two unlicensed daughters over age 15 that were not disclosed on application and were injured as passengers in vehicle accident

BETTER CARE CHIROPRACTIC CENTER, LLC (a/a/o Augustin, Cyndia Rose), Plaintiff, v. TITAN INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2013-CC-001994-O. April 6, 2017. Faye L. Allen, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. Alina O’Connor, Law Offices of Patricia E. Garagozlo, Plantation, for Defendant.

ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT RE: MATERIALMISREPRESENTATION AND GRANTINGPLAINTIFF’S CROSS-MOTION FOR SUMMARYJUDGMENT RE: POLICY AMBIGUITY REQUIRINGRESOLUTION IN FAVOR OF THE INSURED

THIS MATTER having come before the Court on April 3, 2017, upon the motion of the Defendant, Titan Insurance Company (“Titan”), for Summary Judgment Re: Material Misrepresentation and the cross-motion of the Plaintiff, Better Care Chiropractic Center, LLC (a/a/o Augustin, Cyndia Rose) (“Better Care Chiropractic”) for Summary Judgment based upon an ambiguous Policy/Application provision. Having considered the respective motions, affidavits and attachments thereto, including Titan’s Auto Policy and Florida General Auto Application submitted by Fritz Augustin, having considered the deposition testimony of Fritz Augustin, Cindy Augustin and Cyndia Augustin, and having heard argument of counsel and being otherwise fully advised, the Court denies Titan’s Motion for Summary Judgment re: Material Misrepresentation and grants Better Care Chiropractic’s Cross-Motion for Summary Judgment Re: Policy Ambiguity Requiring Resolution in Favor of the Insured, based upon the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. On or about July 19, 2011, Fritz Augustin executed a Florida General Auto Application (the “Application”) to Titan, as a result of which Titan issued Florida Non-Standard Auto Policy Number 009749409 (the “Policy”), with a Policy Period of August 17, 2011 through February 17, 2012 at 12:01 AM.

2. At the time of submission of the Application, Mr. Augustin had three daughters — Fritzlyne, Cindy and Cyndia Rose. Fritzlyne had a driver’s license and operated a motor vehicle. Cindy and Cyndia Rose were resident relatives over the age of 15, did not have driver’s licenses and were not drivers of the vehicles described in the Application.

3. The first page of the Application contains a section entitled DRIVER & HOUSEHOLD INFORMATION, below which appears a table with the following column headings: Drv. #, Name as Shown on Driver’s License, Date of Birth, Marital Status, Sex M/F, License State, Driver’s License Number, Social Security Number, Relationship to Applicant, Senior Operator, SR-22/FR-44.¹

4. While the DRIVER & HOUSEHOLD INFORMATION section of the Application contains columns to identify each driver by number, identify the name of the driver as shown on the Driver’s License, identify the State of licensure, the Driver’s License Number, whether the driver is a Senior Operator and whether the driver has SR-22 or FR-44 insurance coverage for high risk drivers or drivers convicted of a DUI, there are no columns with the heading Name of Non-Driver, Name of Non-Licensed Member of Household, Name of Non-Driving Resident Relative, Name of Non-Driver Child, Name of Non-Licensed Child, or anything similar.

5. The DRIVER & HOUSEHOLD INFORMATION section of the Application also contains the following note:

You, your spouse, and all resident relatives 15 years of age or older, all regular drivers of the vehicles described in this application, and all children who live away from home who drive these vehicles, even occasionally, must be listed below whether licensed or unlicensed. (Emphasis supplied)

6. In the Application, the following names are listed in the column with the heading, Name as Shown on Driver’s License: Applicant, Rosette Augustin (spouse) and Fritzlyne Augustin (child).

7. The Name as Shown on Driver’s License column does not contain the names of Fritz Augustin’s younger daughters, Cindy Augustin and Cyndia Rose Augustin, neither of whom had a Driver’s License at the time of the Application, and neither of whom were drivers of the vehicles described in the Application, or drivers of any vehicles.

8. According to Mr. Augustin, at the time that the Application was submitted, his daughter Fritzlyne Augustin was listed on the Application because she had a license and was driving at the time. Mr. Augustin did not think that Cindy and Cyndia were supposed to be listed on the Application because they did not have a driver’s license and did not drive.

9. On January 2, 2012, Cindy and Cyndia Rose Augustin were passengers in a motor vehicle that was involved in an accident.

10. On or about April 25, 2012, Titan purported to void the Policy, based upon the fact that Cindy Augustin and Cyndia Rose Augustin, the non-licensed, non-driving daughters of Fritz Augustin, had not been disclosed in the column of the table that appears in the DRIVER & HOUSEHOLD INFORMATION section of the Application with the heading, “Name as Shown on Driver’s License.”ANALYSIS — CONCLUSIONS OF LAW

Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Rule 1.510(c), Fla.R.Civ.P; Volusia County v. Aberdeen at Ormond Beach, 760 So.2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a]; Peterson v. Flare Fittings, Inc., 177 So.3d 651 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D2279a]; Martins v. PNC Bank, National Ass’n., 170 So.3d 932 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D1813a].

Ambiguities in an application for insurance are construed liberally in favor of the insured and strictly against the insurer who prepared the policy. Hall v. American Heritage Life Insurance Co., 990 So.2d 589 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1948a]; Graham v. Lloyd’s Underwriters at London, 964 So.2d 269, 274 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2212c]; Great Oaks Cas. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 530 So.2d 1053 (Fla. 4th DCA 1988); Gaskins v. General Ins. Co. of Florida, 397 So.2d 729 (Fla. 1st DCA 1981); Millenium Healthcare Diagnostics, Inc. d/b/a Florida Open MRI, a/a/o Letitia Ponder v. Windhaven Ins. Co., 24 Fla. L. Weekly Supp. 749a (Broward County, Judge Peter B. Skolnik, October 27, 2016). A question in an insurance application is ambiguous when it is susceptible to more than one reasonable interpretation. Mercury Ins. Co. of Florida v. Markham, 36 So.3d 730 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D870a]; Jose Gallardo v. Executive Ins. Co., 9 Fla. L. Weekly Supp. 15a (1th Judicial Circuit (Appellate) in and for Miami-Dade County, 2001); Great Oaks, supra; Millenium Healthcare Diagnostics, supra.

Gaskins v. General Ins. Co. of Florida, 397 So.2d 729 (Fla. 1st DCA 1981) involved alleged misrepresentations of fact in an application for automobile insurance. In that case, the insured had failed to disclose his son on the application under the portion calling for “Driver Information”, where the son lived in the same household and had his own automobile and his own insurance covering that vehicle. The First District Court of Appeal reversed the summary judgment in favor of the insurance company. Observing that “at the very least the inquiry regarding “all drivers in applicant’s household,” is subject to two interpretations, the Court resolved the ambiguity in the application in favor of the insured and against the insurer.

In Jose Gallardo v. Executive Ins. Co., 9 Fla. L. Weekly Supp. 15a (11th Jud. Cir. (Appellate) in and for Miami-Dade County, 2001), the insurer had denied Mr. Gallardo’s claim based upon his failure to list his brother under the “Drivers Information” section of the application. The Drivers Information section contained a note that stated — “List all operators of the vehicles listed above and all persons who have reached the age of 15 and resided with the Named Insured”. The insurer argued that the question on the application was not ambiguous, obtaining a summary judgment on the issue from the trial court. The 11th Circuit, in its appellate capacity, found the application question to be ambiguously worded, reversing the summary judgment. In the words of the court —

Executive Ins. Co. argues that the policy question is not ambiguous in that the information contained in the parenthesis is clear that it seeks driver information and information about those who are over fifteen and residing with the insured regardless of whether they will drive the car. We agree that this is a reasonable interpretation of the language; however, this is not the only reasonable interpretation given the capitalized heading. If Executive wanted to know — as apparently it did — information about drivers of the insured vehicle in addition to or separate and distinct from information about those non-drivers over the age of fifteen living in the same household, it could have asked these questions separately in the application rather than under one general heading entitled DRIVER INFORMATION.

More recently, in Millenium Healthcare Diagnostics, Inc. d/b/a Florida Open MRI, a/a/o Letitia Ponder v. Windhaven Ins. Co., 24 Fla. L. Weekly Supp. 749a (Broward County, Oct. 27, 2016), the PIP insurer had denied benefits with regard to a claim made by the named insured’s daughter, asserting that the daughter was an undisclosed household member of the named insured, rescinding the policy. The application had requested that the insured list all residents of her household, including any and all persons 15 years or older who reside full or part-time at the applicant’s residence. The application further provided that failure to provide this information constitutes a material misrepresentation, which may result in all insurance coverage being void. The applicant did not list her daughter in the application, asserting that the daughter did not reside with her at her primary residence, the residence used for purposes of establishing insurance, but rather, resided at the applicant’s secondary residence. On the Plaintiff’s motion for partial summary judgment, Judge Peter B. Skolnik found that the policy application was “reasonably susceptible to more than one construction or interpretation”, as result of which Judge Skolnik granted summary judgment in favor of the Plaintiff insured on the issue of the Defendant’s affirmative defense of material misrepresentation.

In the case now before the Court, an ambiguity similarly exists as to whether the Application required the disclosure of Fritz Augustin’s daughters, Cindy and Cyndia Rose, who at the time of the Application, were resident relatives over the age of 15, but who did not have driver’s licenses and were not drivers of the vehicles described in the Application. According to Titan, Fritz Augustin should have disclosed Cindy and Cyndia Rose, relying upon the following language of the note contained in the DRIVER & HOUSEHOLD INFORMATION section —

You, your spouse, and all resident relatives 15 years of age or older, all regular drivers of the vehicles described in this application, and all children who live away from home who drive these vehicles, even occasionally, must be listed below whether licensed or unlicensed. (Emphasis supplied) [Editor’s note: no emphasis on court document.]

However, it is not clear from the above note whether the clause — all regular drivers of the vehicles described in this application — is intended to modify the language that immediately precedes it — all resident relatives 15 years of age or older, in which case a reasonable construction and interpretation of the note would require the disclosure of those resident relatives 15 years of age or older who were also regular drivers of the vehicles described in the application, as well as children who live away from home who drive the vehicles described in the application, the applicant and applicant’s spouse.

The reasonableness of this construction is even more apparent, when read in conjunction with the column headings contained in the table in which the individuals are to be listed. From the left, the first column heading that appears is Drv. # — although not spelled out, the reasonable inference to be drawn is that this column is for the purpose of identifying each of the listed drivers, by number. The next column to the right has as its heading, Name as Shown on Driver’s License. The reasonable inference to be drawn from this heading is that only those individuals with a driver’s license are required to be listed. This inference is supported by the following column headings which also appear in the table below the note — License State, Driver’s License Number, Senior Operator, SR-22/FR-44. Each of these headings would only have relevance in the case where Titan is seeking a list of licensed drivers.

Had Titan intended to communicate to Mr. Augustin the necessity of listing non-licensed, non-driving resident relatives in the table, Titan could have chosen language that would have more clearly communicated that intention. More particularly, instead of using the column heading Drv. #, Titan could have used no heading, or Titan could have used the heading Person #, or Titan could have used the heading Drv./Non-Drv. #. Similarly, instead of using the heading Name as Shown on Driver’s License, Titan could have simply labeled the second column, Name,in order to avoid any ambiguity or confusion as to whether licensed driver’s only were to be listed. Titan could have also included a separate table for Resident Relatives 15 Years of Age or Older or Non-Licensed Resident Relatives 15 Years of Age or Olderhad Titan truly wished to communicate that which Titan was seeking, in a clear and unambiguous manner.

Because the information that Titan was seeking in the table that Titan had prepared included the names of individuals as shown on a driver’s license, the state of licensure, the driver’s license number, whether the operator was a senior and whether the operator was required to have SR-22 or FR-44 insurance coverage, a reasonable interpretation of the note prepared by Titan was that Titan was only seeking the disclosure of licensed drivers who would be operating the vehicles described in the Application, as well as children who live away from home who also drive the vehicles, even occasionally, whether licensed or unlicensed.

As the ambiguities in the Application must be interpreted liberally in favor of the insured and strictly against Titan, as the insurer who prepared the Application, this Court denies Titan’s Motion for Summary Judgment re: Material Misrepresentation and grants Better Care Chiropractic’s Cross-Motion for Summary Judgment Re: Policy Ambiguity Requiring Resolution in Favor of the Insured.

__________________

¹An SR22 is a type of auto insurance for drivers deemed to be a high risk. FR-44 is a type of auto insurance for drivers convicted of a DUI.