26 Fla. L. Weekly Supp. 405b
Online Reference: FLWSUPP 2605LESCInsurance — Personal injury protection — Rescission — Material misrepresentations — Where insured misrepresented garaged location of insured vehicle on application, and premium would have been more than double if insured had given his correct address, insurer was entitled to rescind PIP policy and deny coverage
ATRIUM CHIROPRACTIC & REHAB, INC., a/a/o Lemuel W. Escobar, Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, General Jurisdiction Division. Case No. 12-15773 SP-05. July 20, 2018. Alexander S. Bokor, Judge. Counsel: Michael Libman, Miami, and Stuart B. Yanofsky, Plantation, for Plaintiff. Marcus B. Griggs, Coral Gables, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENTREGARDING MATERIAL MISREPRESENTATION
THIS CAUSE having come before the Court upon Defendant’s Motion for Final Summary Judgment on June 25, 2018, and the Court having GRANTED same by oral pronouncement order on June 25, 2018, makes the following findings of fact and conclusions of law:
1. Plaintiff’s Complaint alleged a cause of action for Personal Injury Protection (“PIP”) benefits under a policy of insurance issued by Defendant, GEICO GENERAL INSURANCE COMPANY (“GEICO”), for a loss that occurred on March 30, 2012.
2. The record evidence before the Court reflects that claimant LEMUEL W. ESCOBAR (“named insured”) or someone on his behalf applied for a policy of insurance with GEICO over the internet on March 22, 2012.
3. A GEICO policy ending in -93607 (“the policy”) was internet generated and bound with an effective date of March 23, 2012.
4. Screenshots of the March 22, 2012 online application entries (“application screenshots”) for the policy were entered into evidence as a business record pursuant to Fla. Stat. § 90.803(6) and were authenticated in the affidavit by Joshua Lee, GEICO Senior Applications Analyst.
5. Mr. Lee’s affidavit stated that “the information from the application online is archived and stored on our computer servers, and the data that’s entered in the application is retained in the archive data”.
6. The named insured entered the garaged location of the subject vehicle on the date of policy application as the address 7103 NW 84th Street, Tamarac, Florida 33321.
7. As per the record evidence, the garaged location entered into the online application was a material misrepresentation.
8. The Affidavit by the Rosalia E. Johnson1, Home Owner of [editor’s note: address redacted throughout] stated in pertinent part the following:
· She was currently resides at [redacted], and has resided at this address continually since 1996.
· She is the recorded title holder of the property located at [redacted].
· She is not acquainted with any individual named Lemuel W. Escobar.
· No Individual named Lemuel W. Escobar has resided at [redacted], since she has been the owner in 1996.
9. The Sworn transcribe statement by Rosalia E. Johnson, Dated May 9, 2018 stated in pertinent part the following2:
· Page 8, lines 3- 17, Mrs. Johnson states that she does not know a Lemuel W. Escobar, and that she has lived at the residence since 1996.
· Page 10, lines 8-24, Mrs. Johnson states that she does not own a 1998 Ford Econoline van, which was listed in the GEICO application for insurance
10. A review of the Miami Dade County Clerk of Court On-line docket, show that the Plaintiff had not filed a response in opposition or file any exhibits in opposition of the Defendant’s Motion for Summary Judgment.
11. The fact that Lemuel W. Escobar did not garage his vehicle [redacted] was not contradicted by the Plaintiff.3
12. Defendant filed Records of the Florida Department of Highway Safety and Motor Vehicles (“DHSMV”) pertaining to Lemuel W. Escobar.
14. [Paragraph numbers are as they appear on court document.] The DHSMV records included the Division of Driver Licenses Transcript of Driver Record and the Driver and Vehicle Information Database as they pertained to Lemuel W. Escobar.
15. Said DHSMV records were entered into evidence as public records pursuant to Fla. Stat. §§ 90.803(8) and 90.902.
16. The uncontroverted DHSMV records clearly indicate that since Lemuel W. Escobar original driver’s license was issued on 1/12/2011 through the last date referenced in said records (3/04/2015) that Lemuel W. Escobar had only ever utilized the following addresses4:
· 18401 SW 119th Ave, Miami, Florida 33177
· 3050 NW 42nd Ave, Apt. 502, Coconut Creek, Florida 33066
15. Said DHSMV records made no reference to 7103 NW 84th Street, Tamarac, Florida 33321.
16. Underwriting Supervisor Mr. Smith affidavit in support of the Defendant’s Motion for Summary Judgment that this misrepresentation regarding the garaged location of the vehicle on the date of policy application was material5.
17. Mr. Smith affidavit further stated that had the named insured applied over the telephone utilizing the Miami address that the premium would have more than doubled from that which was quoted using the non-existent Pembroke Pines address.
19. Florida Statute Section 627.409 (2012) states in pertinent part:
Representations in applications; warranties
(1) Any statement or description made by or 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 is not a warranty. 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 either 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.
20. The seminal case regarding policy rescission in the PIP context is United Auto. Ins. Co. v. Salgado, 22 So.3d 594 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1578a] (holding “Because Florida Motor Vehicle No-Fault Law policies are not expressly excluded from Part II of Chapter 627, they are therefore, governed by that part, including section 627.409” Id. at 601).
21. The Salgado Court reaffirmed that “Florida Law indeed gives an insurer the unilateral right to rescind its insurance policy on the basis of misrepresentation in the application for insurance” Id. at 599 (citing Union Am. Ins. Co. v. Fernandez, 603 So.2d 653 (Fla. 3d DCA 1992).
22. An insurer is entitled, as a matter of law, to rely on the accuracy of the information contained in the application and has no duty to make additional inquiry. Independent Fire Ins. Co. v. Arvidson, 604 So.2d 854 (Fla. 4th DCA 1992) (citing New York Life Ins. Co. v. Nespereira, 366 So.2d 859 (Fla. 3d DCA 1979).
23. In the instant case the undisputed facts show that the that Lemuel W. Escobar did not have live or garage his vehicle at 7103 NW 84th Street, Tamarac, Florida 33321 which was the address placed on the GEICO application and that the subject vehicle was not garaged in 7103 NW 84th Street, Tamarac, Florida 33321 on the date of policy application.
24. The record evidence further shows that this misrepresentation as to the garaged location of the subject vehicle was in fact material as contemplated by Fla. Stat. 627.409.
25. Therefore, as the misrepresentation on the application was material the Defendant is entitled, as a matter of law, to void the policy ab initio and deny coverage (see Union Am. Ins. Co. v. Fernandez, 603 So.2d 653 (Fla. 3d DCA 1992) which held “[i]f such a material misrepresentation is established at trial, the subject insurance policy would be void ab initio and accordingly, there would be no liability insurance coverage for the subject accident” Id. at 653).
26. Plaintiff, as assignee of LEMUEL W. ESCOBAR, stands in the shoes of said claimant for all rights, responsibilities, and defenses under the rescinded insurance policy and thus possesses no greater rights than that of its assignor. State Farm & Casualty Insurance Company v. Ray, 556 So.2d 811, 813 (Fla. 5th DCA 1990).
27. The subject GEICO policy ending in -93605 was rescinded pursuant to Fla. Stat. § 627.409 and United Auto. Ins. Co. v. Salgado, 22 So.3d 594 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1578a] and thus void ab initio.
28. This Court finds that there exists no genuine issue of material fact and that pursuant to Rule 1.510 Fla.R.Civ.P. that the Defendant is entitled to judgment as a matter of law.
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1Affidavit of Rosalia E. Johnson was filed with this court, in the Defendant Notice of Filing in Support of Defendant Motion for Summary Judgment pursuant to F.R.C.P. 1.510(e).
2Sworn Statement of Rosalia E. Johnson was filed with this court, in the Defendant Notice of Filing in Support of Defendant Motion for Summary Judgment pursuant to F.R.C.P. 1.510(e).
3Landers v. Milton, 370 So. 2d 368 (Fla. 1979), Movant for summary judgment has initial burden of demonstrating nonexistence of any genuine issue of material fact, but once he tenders competent evidence to support his motion, opposing party must come forward with counter evidence sufficient to reveal a genuine issue, and it is not enough for the opposing party merely to assert that an issue does exist.
Lufthansa German Airlines Corp. v. Mellon, 444 So.2d 1066 (Fla. 3d DCA 1984), Plaintiffs were entitled to summary judgment on issue of liability in action against airline to recover value of piece of luggage that was allegedly lost while in charge of airline during trans-Atlantic air flight, since plaintiffs’ evidence was entirely unrebutted, and defense effort to create issues of fact within plaintiffs’ own evidence amounted to nothing more than attempt to conjure up insubstantial paper issues.
4Florida Department of Highway and Motor Safety transcript was filed with this court, in the Defendant Notice of Filing in Support of Defendant Motion for Summary Judgment pursuant to F.R.C.P. 1.510(e).
5Defendant filed the Affidavit of the Christopher Smith on May 15, 2018, in the Notice of Affidavit in Support of Defendant’s Motion for Summary Judgment pursuant to F.R.C.P. 1.510(e).
