25 Fla. L. Weekly Supp. 982a
Online Reference: FLWSUPP 2511REYEInsurance — Automobile — Coverage — Application — Material misrepresentation — Opposing affidavit filed by insurer does not preclude summary judgment in favor of insurer seeking declaration of property damage coverage under automobile insurance policy where affiant’s assertions pertaining to alleged higher premium that would have been charged had insured disclosed on application that two children over age 15 reside in her home is based on hearsay of unknown declarant in insurer’s underwriting department and not based on affiant’s personal knowledge
JEANETTE MARIA REYES, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 16-CC-011133. Division K. December 20, 2017. Jared E. Smith, Judge. Counsel: Timothy A. Patrick, Patrick Law Group, Tampa, for Plaintiff. John Molloghan, for Defendant.
FINAL SUMMARY JUDGMENT
THIS CAUSE having come before this Court on November 9, 2017, and November 27, 2017, on Plaintiff’s Motion for Final Summary Judgment, pursuant to Rule 1.510, Florida Rules of Civil Procedure. This Court, having considered arguments of counsel and applicable statutes and caselaw, makes the findings of fact and conclusions of law as set forth below.
A. FINDINGS OF FACT AND CONCLUSIONS OF LAW
In the present action, Plaintiff, Jeannette Marie Reyes, seeks a declaration of coverage rights in relation to her automobile insurance policy with Defendant, Windhaven Insurance Company. Plaintiff was the driver in a single car automobile accident on January 14, 2016. On that date, Plaintiff had an automobile insurance policy with Defendant which included $11,000 property damage coverage. Plaintiff did not submit any medical bills or claim for lost wages, however, she did make a claim for approximately $11,000 in repair costs to the vehicle she was driving. Five days after the accident, on January 19, 2016, Defendant’s underwriting department was notified that unlisted household members were present at Plaintiff’s residence. These undisclosed residents, neither of whom were occupants of the vehicle, and neither of whom are licensed drivers themselves, form the purported basis for Defendant’s rescission of the insurance policy.
Section 627.409, Florida Statutes (2015) provides the following parameters on rescission:
(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 not a warranty. Except as provided in subsection (3), 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 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.
Fla. Stat. § 627.409(1)(emphasis added).
Defendant asserts that had Plaintiff disclosed her two children over the age of 15 who were residing in the house, the insurance premium for issuance or renewal of the policy would have been $2,168 rather than $2,047, a difference of $121. In support of its assertion that the insurance premium would have been increased had the two older children’s presence been disclosed, Defendant has filed the affidavit and deposition transcript of Elizabeth Richmond, an underwriter for Defendant. The affidavit states, “had Victoria Villar been disclosed on the policy application as a household resident age 15 or older, and added as an excluded driver, the six-month premium would have increased from $2,047.00 to $2,168.00.”1 A careful review of Ms. Richmond’s deposition transcript reveals that her assertion of a premium difference is based solely on inadmissible hearsay.
Ms. Richmond testified that the premium rates are based on data entered into the system by the actuarial department, and that the “actuarial department is the one that calculates premiums and sets rates with the State.”2 Ms. Richmond is not part of the actuarial department.3 Ms. Richmond testified that the underwriting department used a system to calculate the premium difference.4 However, when asked who from the underwriting department actually entered the data into the system to generate the purported higher premium calculation, Ms. Richmond was not able to identify the individual:
“Q: [Y]ou don’t know the name of the person who would have entered the information in the system for the additional premium workup, correct?
“A: No. Because that’s an underwriting queue department. So anybody could have done it. I don’t have a name.”5
Ms. Richmond further conceded she had no duties with regard to maintenance of the system which purportedly calculated the additional premium.6 Thus, Ms. Richmond’s assertion in her affidavit pertaining to the alleged higher premium amount is, at best, based on hearsay of an unknown declarant and not based on personal knowledge.
Affidavits in support of or in opposition to summary judgment “must be made on personal knowledge.” Fla. R. Civ. P. 1.510(e). See also Ham v. Heintzelman’s Ford, Inc., 256 So. 2d 264 (4th DCA 1971)(“affidavit predicated upon inadmissible hearsay does not comply with the summary judgment rule and cannot be used in support of or in opposition to summary judgment); Martins v. PNC Bank, Nat. Ass’n, 170 So. 3d 932 (5th DCA 2015) [40 Fla. L. Weekly D1813a] (trial court abused its discretion in considering rather than striking affidavit based on inadmissible hearsay and not on affiant’s personal knowledge). This Court is, therefore, unable to consider Ms. Richmond’s affidavit and testimony concerning post-accident calculation of the premium, both of which are based on inadmissible hearsay and not personal knowledge. The undisputed facts are that Defendant issued an insurance policy, that the policy included $11,000 in property damage coverage, and that Plaintiff was involved in an accident falling within the parameters of the policy.
B. SUMMARY JUDGMENT
Based on the foregoing findings of fact and conclusions of law, it is ORDERED AND ADJUGED as follows:
1. Plaintiff’s Motion for Summary Judgment is GRANTED. Property damage coverage under the subject insurance policy is hereby declared in favor of Plaintiff.
2. Plaintiff’s Amended Motion to Strike the Affidavit of Elizabeth Richmond is GRANTED.
3. This Court reserves jurisdiction in this case to determine the amount of and entitlement to court costs and attorney’s fees.
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1Affidavit of E. Richmond, ¶ 11.
2E. Richmond, 23:4-14.
3E. Richmond, 22:23-25.
4E. Richmond, 24:9-13.
5E. Richmond, 24:21-25:1 (emphasis added).
6E. Richmond, 24:17-20.
