26 Fla. L. Weekly Supp. 320a

Online Reference: FLWSUPP 2604MCKIInsurance — Application — Material misrepresentation — Insured entitled to summary judgment on issue of material misrepresentation where opposing affidavit on which insurer relied as evidence that premium rate would have changed if insured’s co-resident grandmother had been listed on application is inadmissible hearsay and not based on personal knowledge of affiant

JARVIS MCKIVER, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 16-CC-035840, Division I. June 7, 2018. Joelle Ann Ober, Judge. Counsel: Timothy A. Patrick, Patrick Law Group, P.A., Tampa, for Plaintiff. John Molloghan, for Defendant.

ORDER GRANTING IN PART ANDDENYING IN PART PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT

THIS MATTER came before this Court at a hearing on March 22, 2018, on Plaintiff’s Motion for Final Summary Judgment filed June 22, 2017. Having considered Plaintiff’s Motion, Defendant’s Verified Response and Memorandum of Law in Opposition to Plaintiff’s Motion for Summary Judgment, supporting summary judgment evidence, argument of counsel, relevant case law, and being otherwise fully advised, the Court finds:

1. This is an action for declaratory judgment under Florida Statutes Chapter 86 seeking a declaration of coverage under a policy of insurance issued to Plaintiff by Defendant in effect on July 11, 2016. The policy was subject to rescission by Defendant based on an alleged material misrepresentation for failure to list a co-resident, Plaintiff’s grandmother Quennie Bivens, on the insurance application.

2. Plaintiff’s Motion for Summary Judgment seeks entry of final summary judgment arguing that the alleged misrepresentation was not material to the risk or hazard assumed.

3. In opposition to Plaintiff’s Motion, Defendant filed a Verified Response in opposition arguing that the policy was properly rescinded under Florida Statutes section 627.409 based on a material misrepresentation on the insurance application. Defendant argues the misrepresentation was material in nature relying upon the affidavit of Elizabeth Richmond as evidence of a change in premium had Ms. Bivens been disclosed at the time of the insurance application.

4. On March 14, 2018, Plaintiff filed a Motion to Strike Affidavit filed by Defendant arguing that the Affidavit of Elizabeth Richmond is based on inadmissible hearsay and is not based on personal knowledge.

5. The Court finds the Affidavit of Elizabeth Richmond, supported by Ms. Richmond’s deposition, is based on inadmissible hearsay and is not based on the personal knowledge of the affiant. The Court is therefore unable to consider same. See Fla. R. Civ. P. 1.510(e); Reyes v. Windhaven Insurance Company, 25 Fla. L. Weekly Supp. 982a (Fla. Hillsborough Cty. Ct. Dec. 20, 2017). As such, there is no indication in the record that the premium rate would have been any different with the disclosure of Ms. Bivens on the insurance application.

6. The Court finds that the summary judgment evidence reflects there are no genuine issues of material fact as to the issue of a material misrepresentation. The undisputed facts do not show a material misrepresentation, making summary judgment in favor of the Plaintiff as to that issue appropriate.

7. However, the Court also finds that entry of final summary judgment in this matter is inappropriate at this time as the record reflects that material misrepresentation is not the sole affirmative defense set forth by the Defendant.¹ “Where a defendant pleads affirmative defenses, the plaintiff moving for summary judgment must either factually refute the affirmative defenses by affidavit or establish their legal insufficiency.” Bryson v. Branch Banking and Trust Co., 75 So. 3d 783, 785 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2582a]. Based on the foregoing, it is therefore ORDERED AND ADJUDGED

1) Plaintiff’s Motion to Strike Affidavit Filed by Defendant is hereby GRANTED.

2) Plaintiff’s Motion for Summary Judgment is hereby GRANTED in part, and DENIED in part.

a. Plaintiff’s Motion is granted as to the issue of material misrepresentation

b. Plaintiff’s Motion is denied as to the entry of final summary judgment. Plaintiff’s Motion only addresses Defendant’s Sixth Affirmative Defense of Material Misrepresentation and does not address Defendant’s other affirmative defenses, as such final summary judgment is inappropriate at this time.

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¹The Court notes that Plaintiff’s Motion asserts that material misrepresentation is the sole affirmative defense in this matter; however, Plaintiff’s Motion was filed while a Motion to Dismiss was pending and prior to Defendant filing its Answer, Affirmative Defenses and Demand for Jury Trial in which Defendant asserts six affirmative defenses.