25 Fla. L. Weekly Supp. 638b
Online Reference: FLWSUPP 2507SBROInsurance — Personal injury protection — Coverage — Medical expenses — Affidavits offered by insurer in support of its defense that policy was void because insurer made material misrepresentations on application when she failed to list all household members over age 15 were insufficient to create genuine issue of material fact — Affidavit submitted three days prior to hearing on provider’s motion for summary judgment was untimely and cannot be considered — Further, affidavit contained nothing more than unsubstantiated factual conclusions, was not based on personal knowledge, and did not affirmatively show that affiant was competent to testify to matters stated in affidavit — Second affidavit is inadmissible as summary judgment evidence because it was based solely on unsworn recorded statements — Motion for summary judgment granted
CONROY CHIROPRACTIC, INC. a/s/o Simmie Brown, Plaintiff, v. INFINITY AUTO INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2016-CC-002279-O. March 27, 2017. Eric H. Dubois, Judge. Counsel: Dave T. Sooklal, Anthony-Smith Law, P.A., Orlando, for Plaintiff. Amber Clark, Orlando, for Defendant.
ORDER AND FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on March 24, 2017, upon Plaintiff’s Motion for Final Summary Judgment. As set forth below, the Court makes the following findings of fact and conclusions of law:
FACTUAL BACKGROUND AND UNDISPUTED FACTS
1. Defendant, INFINITY AUTO INSURANCE COMPANY, issued a policy of automobile which provided up to $10,000.00 in Personal Injury Protection (“PIP”) benefits to Simmie Brown.
2. On August 1, 2015, Simmie Brown (“Brown”), was involved in a motor vehicle accident in which he sustained injuries.
3. Plaintiff, CONROY CHIROPRACTIC, INC. a/s/o SIMMIE BROWN, rendered treatment to the Brown from August 5, 2015, through October 19, 2015, pursuant to a valid assignment of benefits executed in its favor. It is undisputed that the treatment was reasonable in price, medically necessary and causally related to the subject motor vehicle accident as both parties have stipulated to the same.
4. Moreover, Plaintiff timely submitted its bills to Defendant for services rendered to the insured which were properly completed in compliance with §627.736, Florida Statutes, and Plaintiff has met all conditions precedent to bringing this action.
5. In response, Defendant voided the instant policy of insurance alleging that Betty Solomon, the named insured on the policy, made a material misrepresentation on her application for insurance and denied the subject bills as a result thereof.
6. As a result, Plaintiff filed the instant lawsuit and its Motion for Final Summary Judgment.
7. In response, Defendant solely filed the affidavits of Eliezer Suarez and Shekhar Malvakkar.
ARGUMENT BY THE PARTIES
8. Plaintiff contends that there is no genuine issue of material fact regarding the reasonableness of its charges, nor the causal relatedness and medical necessity of the entirety of the treatment at issue in this case pursuant to the parties’ joint stipulation, whereby entitling Plaintiff to summary judgment regarding the same.
9. In addition, Plaintiff contends that the Defendant has failed to present any summary judgment evidence in support of its sole defense that Solomon made a material misrepresentation on her application for the subject policy of insurance. Based on the lack of admissible summary judgment evidence, Plaintiff submits that it has discharged its burden of proof regarding Defendant’s material misrepresentation claim, which the Defendant bears the burden of proving at trial.
10. Defendant solely filed the affidavits of Eliezer Suarez (“Suarez”) and Shekhar Malvakkar (“Malvakkar”) in opposition to Plaintiff’s Summary Judgment Motion and relies on the affidavits in support of its position that Solomon not only made a misrepresentation but that the purported misrepresentation was material.
11. Suarez’s affidavit was filed with this Court on March 21, 2017 — three days before the hearing on Plaintiff’s Motion for Summary Judgment.
12. Suarez’s affidavit is filed in support of Defendant’s contention that the alleged misrepresentation was material i.e. Infinity would have increased Solomon’s premium had she not made a misrepresentation in her application for insurance. The crucial allegations in Suarez’s affidavit are as follows:
a. Suarez attests that he is the “Manager of the Customer Service Call Center” for Infinity.
b. He reviewed the underwriting history of the subject policy.
c. On June 11, 2015, Betty Solomon completed an application for insurance.
d. At the time the policy was issued, Infinity’s standard practice was to either rate or exclude all household members over the age of fifteen.
e. Infinity relied on the application for insurance completed by Solomon and did not rate Choya Zetterholm and Simmie Brown — the two alleged unlisted household members over the age of fifteen.
f. Solomon’s premium would have increased by $761.00 to include Brown and Zetterholm and $61.00 to exclude them.
13. In addition, Infinity filed Malvakkar’s affidavit in support of Defendant’s contention that Solomon made a misrepresentation on her application for insurance i.e. failing to list Brown and Zetterholm on the application as household members over the age of fifteen. The affidavit solely relies on unsworn recorded statements purportedly taken of Solomon, Brown, and Zetterholm, in support of the following:
a. On August 14, 2015, Solomon stated that she resided at 167 Oak Grove Rd, Winter Park, Florida and Brown and Zetterhom also reside with her for the previous four or five months.
b. On September 3, 2015, Brown stated that he resided at 167 Oak Grove Rd, Winter Park, Florida and moved into the residence at the end of March and end of April.
c. On September 3, 2015, Zetterholm stated that he resided at 167 Oak Grove Rd, Winter Park, Florida and moved into the residence about five or six months ago.
FINDINGS AND CONCLUSIONS OF LAW
14. The Court finds that there is no genuine issue of material fact regarding the reasonableness, relatedness or necessity of the treatment at issue in this case, based on the joint stipulation of both parties.
15. Further, the Court finds that Plaintiff has established that there is no genuine issue of material fact regarding Defendant’s defense of material misrepresentation by showing the Court that Defendant has not proffered any admissible evidence in support thereof.
16. Thus, it is now incumbent on the Defendant to submit evidence to rebut the motion for summary judgment, and it is not sufficient to rely on paper issues created by the pleadings. See Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966)
17. The only opposition Defendant has filed in response to Plaintiff’s Motion for Summary Judgment are the affidavits of Suarez and Malvakkar.
18. The Court finds that the affidavit of Suarez is untimely as it was submitted only three days prior to the Summary Judgment hearing, in derogation of the five day requirement in Fla. R. Civ. P. 1.510. Thus, this Court cannot consider the untimely affidavit.
19. However, even if the Court were to consider Suarez’s affidavit, it would be of no matter as the affidavit is deficient for the following reasons:
a. It is: 1) not based on personal knowledge; 2) does not state facts as would be admissible in evidence; and 3) does not affirmatively show that the affiant is competent to testify to the matters stated therein as required by Fla. R. Civ. P. 1.510(e).
b. Specifically, the affidavit does not establish that Suarez is qualified to testify regarding the “materiality” of the alleged misrepresentation because Suarez’s affidavit fails to establish that he is competent to opine regarding the underwriting of the subject policy of insurance. In particular, the affidavit admits that Suarez is a “Manager of the Customer Service Call Center” — not an underwriter — and merely concludes that the insurance premium would have increased without providing any substantiation for the same, which is improper. See Affirmative Insurance Co. v. Bayview Medical & Rehab Center, Inc. a/a/o Felipe Posas, 16 Fla. L. Weekly Supp 213c, citing GRG Transport Inc. v. Certain Underwriters at Lloyd’s London, 896 So. 2d 922 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D600a] (holding that the affidavit of underwriter is required to opine regarding the increase of insurance premiums).
c. Thus, the affidavit contains nothing more unsubstantiated factual conclusions, which this Court cannot consider. See Florida Dep’t of Fin. Servs. v. Associated Indus. Ins. Co., 868 So. 2d 600, 602 (Fla. DCA 2004) [29 Fla. L. Weekly D568a]; Thompson v. Citizens Nat. Bank of Leesburg, Fla., 433 So. 2d 32, 33 (Fla. 5th DCA 1983) (holding that an affidavit based on information and belief rather than personal knowledge is not admissible into evidence and should not be considered by a trial court on a motion for summary judgment).
20. In addition, Malvakkar’s affidavit filed in support of the alleged misrepresentation is deficient for the following reasons:
a. The affidavit is solely based on inadmissible hearsay as Malvakkar relies on the unsworn recorded statements of Solomon, Zetterholm, and Brown in support of his contention that Brown and Zetterholm were household residents of Solomon.
b. The Florida Supreme Court has held that:
The chief reasons for the exclusion of hearsay evidence are the want of the sanction of an oath, and of any where the testimony was given under oath, in a judicial proceeding, in which the adverse litigant was a party and where he had the power to cross-examine, and was legally called upon so to do, the great and ordinary test of truth being no longer wanting, the testimony so given is admitted.
See Putnal v, Stale, 56 Fla. 86, 93-94, 47 So. 864, 866 (1908).
c. Furthermore, in Affirmative Insurance Co. v. Bayview Medical & Rehab Center, Inc. a/a/o Felipe Posas, 16 Fla. L. Weekly Supp 213c, the Thirteenth Judicial Circuit. in its appellate capacity held that recorded statements arc inadmissible and dismissed an insurer’s contention that unsworn recorded statements are admissible pursuant to the business record exemption. Affirmative. Insurance Co. v. Bayview Medical & Rehab Center, Inc. a/a/o Felipe Posas, 16 Fla. L. Weekly Supp 213c.
d. Based on the foregoing, Malvakkar’s affidavit is inadmissible as summary judgment evidence because it is based on unsworn recorded statements which are inadmissible hearsay.
21. Because Suarez and Malvakkar’s affidavits are deficient, the Defendant has failed to submit summary judgment evidence to create a genuine issue of material fact regarding its material misrepresentation defense.
22. Moreover, this Court relies on the case of CONROY CHIROPRACTIC, INC. a/s/o ANTONIO LOCKWOOD v. INFINITY AUTO INSURANCE COMPANY, Case No. 2016-CC-002277-O, wherein the exact issues raised in this case were heard by the Lockwood Court, which granted Plaintiff’s Motion for Summary Judgment.
Accordingly, it is ORDERED AND ADJUDGED, that Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED;
