25 Fla. L. Weekly Supp. 502a
Online Reference: FLWSUPP 2507GARAInsurance — Personal injury protection — Application — Misrepresentations — Evidence — Examination under oath is admissible under exception to hearsay rule applicable to admission by party, and trial court erred by holding EUO transcript was inadmissible and improper summary judgment evidence — Policy was properly rescinded, and therefore void ab initio, based on insured’s material misrepresentation on policy application
STAR CASUALTY INSURANCE COMPANY, a Florida corporation, Appellant, v. EDUARDO J. GARRIDO, D.C., P.A., a/a/o Huegette D. Garay, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 16-255 AP. L.T. Case No. 09-001104 CC 26. October 3, 2017. An Appeal from the County Court for Miami-Dade County, Gonzalez-Meyer, Judge. Counsel: Diane H. Tutt, Conroy Simberg, for Appellant. Christian Carrazana, Christian Carrazana, P.A., for Appellee.
[Lower court order published at 24 Fla. L. Weekly Supp. 386a.]
(Before GLICK, MILIAN, and RODRIGUEZ-FONTS, JJ.)
(RODRIGUEZ-FONTS, J.) This is an appeal from a cross-final summary judgment construing a PIP policy. In 2008, the insured, Huegette D. Garay and her husband, Francisco Garay were involved in an automobile accident and the insured sustained personal injuries. She was insured by Appellant Star Casualty Insurance Co. under an automobile insurance policy (policy). She was treated between May 19, 2008 to August 20, 2008 by Appellee Eduardo J. Garrido, D.C., P.A. and assigned Appellee her PIP benefits under the policy. Appellant denied her PIP benefits and subsequently rescinded the policy and returned her premium due to a misrepresentation on the policy’s application.
In 2009, Appellee filed a breach of contract claim for personal injury protection benefits (PIP) benefits. In 2014, Appellant filed a motion for final summary judgment on its misrepresentation defense.1 Appellee filed a cross-motion for final summary judgment. A hearing was conducted on April 20, 2016.2 A final summary judgment for PIP benefits was entered on the cross-motion on May 16, 2016 in favor of the Appellee and denied Appellant’s motion.
As to the first issue on appeal, the insured’s examination under oath (EUO) transcript is admissible and proper summary judgment evidence. Although an EUO transcript is not an affidavit or deposition, it holds the same evidentiary value and fits under “other materials as would be admissible in evidence” under Florida Rule of Civil Procedure 1.510(c). Although an EUO transcript is hearsay, it is admissible under the party admission hearsay exception [§ 90.803(18), Fla. Stat. (2014)]. Smith v. Fortune Ins. Co., 404 So. 2d 821, 823 (Fla. 1st DCA 1981); Millennium Diagnostic Imaging Ctr. a/a/o Alejandro Gonzalez v. Allstate Prop. & Cas. Ins. Co., 14 Fla. L. Weekly Supp. 84a (Fla. 11th Cir. Ct. Oct. 12, 2006); Eduardo J. Garrido, D.C., P.A. a/a/o Francisco Garay v. Star Casualty Insurance Co., 23 Fla. L. Weekly Supp. 557c (Fla. Miami-Dade Cty. Ct. Jan. 14, 2015), per curiam aff’d., Case No. 15-333 AP (Fla. 11th Cir. Ct. June 21, 2016) and cert. denied, 2017 WL 2561208 (Fla. 3d DCA May 25, 2017) (without opinion) (same issue) (both the instant insured’s and Francisco Garay’s EUO testimony was determined to be admissible to support a motion for summary judgment for material misrepresentation citing section 90.803(18), Florida Statutes, Smith and Gonzalez). Thus, we find that the trial court erred below by holding that an EUO transcript is inadmissible hearsay and improper summary judgment evidence.
As to the second issue on appeal, the insured made a misrepresentation on the policy’s application and the evidence showed that it was material. In interpreting the policy, we find that the trial court erred because the policy was void ab initio and no coverage existed due to the material misrepresentation. United Automobile Ins. Co. v. Salgado, 22 So. 3d 594, 601 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1578a]; GRG Transp. Inc. v. Certain Underwriters at Lloyd’s, London, 896 So. 2d 922, 925 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D600a]. Therefore, the policy’s application including the alleged exclusion for business purposes never merged into the policy. The policy application and policy were unambiguous. Mercury Insurance Co. of Florida v. Markham, 36 So. 3d 730, 733 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D870a]; Eduardo J. Garrido, D.C., P.A. a/a/o Francisco Garay, 23 Fla. L. Weekly Supp. at 557c.
Accordingly, we reverse the cross-final summary judgment below with directions to the trial court to enter summary judgment in favor of the Appellant since the policy was properly rescinded under section 627.409(1)(a), Florida Statues (2014). Appellant’s motion for appellate attorney’s fees under section 768.79, Florida Statutes (2014) is granted as to entitlement subject to a determination by the trial court below and Appellee’s motion for appellate attorney’s fees under section 627.428, Florida Statues (2014) is denied.
REVERSED and REMANDED. (GLICK and MILIAN, JJ. concur.)
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1The pertinent affirmative defense of misrepresentation stated: “The insured, Huegette D. Garay, committed a material misrepresentation on the policy’s application by failing to disclose that her vehicle would be used for business purposes. Such a misrepresentation was material as, had the true facts been known, Appellant would not have issued the subject policy or would have issued the policy at a substantially higher premium rate. Therefore, the policy was rescinded ab initio and there is no coverage under same.”
2A transcript of the hearing was provided on the record.
