26 Fla. L. Weekly Supp. 1004a
Online Reference: FLWSUPP 2612GRIMInsurance — Personal injury protection — Coverage — Medical expenses — Material misrepresentation regarding claim — Where claimant who was passenger in covered vehicle at time of accident made material misrepresentation to insurer regarding his residence on date of loss, insurer is not required to pay claim
ATLANTIC COAST ORTHOPAEDICS, LLC. a/a/o Marlon Grimes, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court,17th Judicial Circuit in and for Broward County. Case No. COCE14023162 (70), Civil Division. December 14, 2018. John D. Fry, Judge. Counsel: Todd A. Landau, Landau & Associates, Hallandale Beach, for Plaintiff. Max M. Nelson, Progressive PIP House Counsel, Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on November 19, 2018 for hearing on Defendant’s Motion for Final Summary Judgment, and the Court having reviewed the file, record, pleadings, relevant legal authorities, considered the arguments of counsel and being otherwise sufficiently advised in the premises, the Court finds as follows:
PROCEDURAL HISTORY & FACTS
Plaintiff filed this one-count PIP breach of contract suit on December 5, 2014. Plaintiff alleged that Marlon Grimes was involved in a motor vehicle accident on April 24, 2014, treated with Plaintiff on dates of service May 27, 2014 through July 10, 2014, and that benefits were due and owing under an auto insurance policy Progressive issued to Ms. Nyota King. Mr. Grimes is not listed under this policy, and Plaintiff claimed coverage by alleging that Mr. Grimes was a passenger in her insured vehicle on the date of loss.
Defendant’s Fourth Affirmative Defenses alleged that Mr. Grimes made a material misrepresentation regarding his residence, the key coverage fact, during a pre-suit recorded statement taken by Progressive on May 9, 2014. Mr. Grimes stated, “I’m currently living with my sister,” had been living with her since “February or March” 2014 (before the loss), and that his sister had her own vehicle and insurance. Mr. Grimes was informed during this statement that he would need to go through the “household,” i.e, his sister’s PIP insurance given that he claimed to be her co-resident relative, and Mr. Grimes acknowledged that he understood this, and did not correct or revise his prior statements regarding residence. During her recorded statement, Progressive’s insured, Nyota King, stated that no other adults lived at her address on the date of loss, and that Mr. Grimes was just a “friend,” not a co-resident, consistent with Mr. Grimes’ statements that he did not live with Ms. King. These statements caused Progressive to deny coverage, re-direct Mr. Grimes to his sister’s auto insurance, and deny Plaintiff’s bills.
On May 30, 2018, Progressive took the deposition of Mr. Grimes. He testified that he “never ever, ever lived with [his] sister” and that he “lived with Mrs. King at the time of the accident,” contradicting his prior unambiguous statements that he lived with his sister for at least a month prior to the alleged date of loss. Tr. at 14. Mr. Grimes testified that his sister lived at a different address and owned and drove a Pontiac, which was not insured by Progressive. Tr. at 33 & 34. Mr. Grimes was asked why he previously told Progressive that he lived with his sister, and not Ms. King, and he acknowledged that he gave a different account of his residence during the recorded statement, attempting to justify the inconsistencies by stating that he previously said he lived with his sister for the purposes of receiving mail. Tr. at 22-23. This testimony is wholly inconsistent and cannot be reconciled with the repeated, unequivocal pre-suit statements that he lived with his sister for at least a month prior to the loss, which misled Progressive and caused denial of Plaintiff’s bills. Following this deposition, the parties proceeded to a hearing on Defendant’s Motion for Final Summary Judgment on November 19, 2018.
RATIONALE AND CONCLUSIONS OF LAW
As a preliminary matter, the transcribed recorded statements of Mr. Grimes and Ms. King, filed in the record on May 14, 2018, are admissible. Fla. R. Civ. P. 1.510. Supported and attached to the Affidavit of Defendant’s representative, which properly offered the statements as business records, the recorded statements are business records that satisfy the applicable hearsay exception. Fla. Stat. 90.803(6). By filing its affidavit and the statements over seven months prior to the hearing, Defendant gave “reasonable written notice” of its intention to rely on these statements, and Plaintiff’s failure to challenge the admissibility of the evidence until the summary judgment hearing is unavailing. The portions of the recorded statements relied on by Defendant also constitute “admissions” and “statements against interest” by the declarants. Fla. Stat. 90.803(18) & Fla. Stat. 90.804(2)(c). In any event, during a sworn deposition taken with Plaintiff’s counsel properly notified and present, Mr. Grimes acknowledged, and attempted to explain away, his prior inconsistent statements regarding residence. Tr. at 22-23.
“An insurer is not required to pay a claim or charges . . . [t]o any person who knowingly submits a false or misleading statement relating to the claim or charges.” Fla. Stat. 627.736(5)(b)(1)(c). This provision is properly incorporated into the Progressive policy issued to Ms. King, which states that “We may deny coverage for an accident or loss if you or a person seeking coverage has knowingly concealed or misrepresented any material fact or circumstance, or engaged in fraudulent conduct, in connection with the presentation or settlement of a claim.” These material misrepresentation policy provisions are “fully enforceable in Florida,” and an insurer may deny coverage and is entitled to a judgment in its favor where applicable. See, e.g., Lopes v. Allstate, 873 So. 2d 344, 346 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D246a].
A claimant’s actual residence on the date of loss is a key and material coverage fact. If Mr. Grimes did in fact reside with his sister, as he represented during the recorded statement, a PIP coverage exclusion under Progressive’s policy applied: PIP coverage under the applicable policy “does not apply to bodily injury . . . sustained by any person, other than you [the insured] or a resident relative, who is entitled to personal injury protection benefits from the insurer or owner of a motor vehicle which is not a covered auto under this policy.” This exclusion is authorized by, and tracks the language of, Fla. Stat. 627.736(4)(e) (specifying that coverage solely by virtue of being a passenger is someone’s vehicle does not apply if the claimant is covered through their household as a resident relative of someone with their own vehicle and insurance).
Because Mr. Grimes made material misrepresentations to Progressive regarding his residence on the date of loss, the key coverage fact, Progressive was justified in denying Plaintiff’s bills, and for the reasons stated above, it is:
ORDERED AND ADJUDGED THAT Defendant’s Motion for Final Summary Judgment is hereby GRANTED. Plaintiff’s claim is hereby DISMISSED. The Plaintiff shall take nothing by this action and the Defendant shall go hence without day. Defendant is the prevailing party in this action. Accordingly, the Court RESERVES jurisdiction to determine attorneys’ fees and costs owed to Defendant.
