27 Fla. L. Weekly Supp. 1046a

Online Reference: FLWSUPP 2712ACELInsurance — Personal injury protection — Coverage — Application — Material misrepresentation defense fails where application was ambiguous as to whether insured was required to disclose adult household resident who did not hold driver’s license and had never driven insured vehicle — Ambiguity could not be overcome by assertion that insurance agent explained to insured that he was required to list all persons in his household who are 15 years of age or older, whether licensed or not

IMAGING CENTER OF WEST PALM BEACH, LLC (As Assignee of Bertrand Acelouis), v. CENTURY-NATIONAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 16-008883 (56). February 3, 2020. Betsy Benson, Judge. Counsel: Tara L. Kopp and Eric C. Hayden, Schuler, Halvorson, Weisser, Zoeller, Overbeck, P.A., West Palm Beach, for Plaintiff. William J. McFarlane, Coral Springs, for Defendant.

ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND GRANTING PLAINTIFF’SCROSS-MOTION FOR FINAL SUMMARY JUDGMENT

THIS CAUSE having come before the Court for hearing on January 23, 2020 upon Defendant’s Motion for Summary Judgment and Plaintiff’s Memorandum in Opposition of Defendant’s Motion for Summary Judgment and Incorporated Cross-Motion for Final Summary Judgment and the Court, having reviewed the motions, the Court file, the case law presented, and having heard argument of counsel and being otherwise fully advised in the premises, it is hereupon ORDERED and ADJUDGED, as follows:

1. Bertrand Acelouis applied for automobile insurance with Defendant, Century-National Insurance Company, on April 28, 2015. Mr. Acelouis applied in-person at Insurance World of Delray Beach, an insurance agency, with the assistance of insurance agent Mr. Evan Sheiman.

2. The insurance application contains the following language on page 1 of 6: “DRIVER INFORMATION: Names of all drivers in household, all children and all persons that use the vehicles. Coverage is provided only for the drivers listed below.” Underneath this language the application provides a table that includes columns with the following titles: “Name of Driver (Exactly as shown on Driver’s License)”; “License Number”; and “State”.

3. In the table underneath the “DRIVER INFORMATION” section Mr. Acelouis disclosed himself.

4. On page 5 of 6 of the insurance application, there is a section titled “AGREEMENT TO EXCLUDE NAMED PERSONS” which contains the following language:

“In consideration of the premium charged, it is hereby understood and agreed that only Personal Injury Protection Coverage and Property Damage Liability Coverage in the minimum amount necessary to meet the Florida Financial Responsibility requirement, and in the event this policy is certified as proof of financial responsibility in the State of Florida, Bodily Injury Liability Coverage in the minimum amount necessary to meet the Florida Financial Responsibility requirement, shall be afforded when any vehicle covered under the policy or any continuation, renewal or replacement of such policy, is used or operated by an excluded person named below.”

5. Bertrand Acelouis wrote “N/A” below the “AGREEMENT TO EXCLUDE NAMED PERSONS” section.

6. On the last page of the application, page 6 of 6, there is a section titled “CERTIFICATION OF APPLICANT” that asks the applicant to initial next to seven (7) statements. This section does not include an area for the applicant to disclose any additional information; it only has an area for the applicant to initial next to each statement.

7. One of the statements in the “CERTIFICATION OF APPLICANT” section reads:

“I hereby certify that I have listed all persons in the household and all drivers of the vehicles, whether in my household or not, as well as all children whether living with me or not. I understand that no coverage will be provided for drivers that are not listed on my policy whether they are in the household now or enter it later. I understand it is my responsibility to make the Company aware of any changes in drivers, vehicles or coverages. I certify that the garaging address listed is the actual address where my vehicle(s) are garaged the majority of the time and I am aware that any change in the mailing or garaging address of any vehicle must be reported to the Company immediately.”

8. Mr. Acelouis initialed next to all of the “CERTIFICATION OF APPLICANT” statements, including the one described above.

9. Century-National issued Mr. Acelouis a policy of insurance that included $10,000.00 in personal injury protection (“PIP”) coverage.

10. At the time that Bertrand Acelouis completed the insurance application he resided with his girlfriend, Maude Charles. It is undisputed that Charles did not have a driver’s license, had never driven the insured vehicle, and had never driven a vehicle in the United States.

11. On May 14, 2015 Bertrand Acelouis was involved in a motor vehicle accident while driving the insured vehicle and, as a result thereof, suffered injuries. Mr. Acelouis sought and received medical treatment for these injuries from Plaintiff, Imaging Center of West Palm Beach, LLC.

12. Mr. Acelouis assigned his PIP benefits to Imaging Center, and Imaging Center submitted bills to Century-National which were denied.

13. Imaging Center brought this suit against Century-National for failure to pay PIP benefits. As its sole affirmative defense, Century-National alleged that Mr. Acelouis committed a material misrepresentation on the insurance application by not disclosing Charles as follows:

“The insured to whom the insurance policy was issued is guilty of one or more material misrepresentations on the application for insurance resulting in the insurance policy being void ab initio. In particular, the named insured failed to disclose household member, Maude Charles, at the time of the application for insurance. Had the named insured disclosed Maude Charles, it would have resulted in a premium difference or material change in terms of the agreement to provide insurance. Such a material misrepresentation is grounds for rescission of the agreement and is in breach of the terms of the insurance contract.”

14. Century-National moved for summary judgment based on its material misrepresentation affirmative defense.

15. In support of its motion, Century-National filed an affidavit from the insurance agent Evan Sheiman. The affidavit set forth in pertinent part:

“As is my custom and normal business practice, during Mr. Acelouis’ application process, I asked Mr. Acelouis to list all persons in his household who are 15 years of age or older, whether licensed or not and all drivers of the vehicles, whether in his household or not. Mr. Acelouis did not disclose any household members over the age of 15 as reflected in Exhibit A [the insurance application]. Had Mr. Acelouis disclosed any household members over the age of 15, then I would have added said household members either on the first page of the application and/or listed them as excluded on page 5 of the application.”

16. Imaging Center filed a memorandum in opposition to Century-National’s summary judgment motion, and its own cross-motion for final summary judgment, arguing that the insurance application did not require the disclosure of Maud Charles since Ms. Charles was not a “driver” and that the insurance application was ambiguous.

17. The interpretation of insurance contracts, including the determination of ambiguities in such insurance contracts, is a matter of law to be decided by the courts. See San Sandron Corp. v. Utica Mut. Ins. Co., 360 So. 2d 477, 479 (Fla. 3rd DCA 1978); Gaulden v. Arkwright-Boston Mfrs. Mut. Ins. Co., 358 So. 2d 267 (Fla. 3rd DCA 1978).

18. Ambiguities in insurance contracts should be construed liberally in favor of the insured and strictly against the insurer. Flores v. Allstate Ins. Co., 819 So. 2d 740, 744 (Fla. 2002) [27 Fla. L. Weekly S499a]; see also Union Am. Ins. Co. v. Maynard, 752 So. 2d 1266 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D648a]. Language in an insurance contract is ambiguous where it is susceptible to more than one reasonable interpretation. Id.

19. The Court finds that the insurance application is ambiguous, as a matter of law, regarding whether an adult household resident who does not hold a driver’s license and has never driven the insured vehicle must be disclosed.

20. If Century-National had intended for such individuals to be disclosed on the application, it could certainly have chosen application language that more clearly communicated that intention. A reasonable interpretation of the application is that it was only asking for individuals who would be driving the insured vehicle, especially in light of the title “DRIVER INFORMATION”, the fact that the phrase “persons that use the vehicle” is not defined, and the column titles of the table appear to pertain to licensed drivers. Therefore, the application is ambiguous.

21. The Court’s finding that the insurance application is ambiguous is in line with other Florida county courts addressing the same or similar insurance applications. See Ocean Ridge Chiropractic, Inc., (a/a/o Bertrand Acelouis) v. Century-National Insurance Co., 27 Fla. L. Weekly Supp. 753a (Fla. Broward County Ct. August 7, 2019) (Addressing the same insurance application, same defendant insurance company, same material misrepresentation defense, same claimant, and same affidavit from the insurance agent, the court, in granting the plaintiff’s cross-motion for summary judgment, found the application to be ambiguous.); Colonial Medical Center, Inc. (a/a/o Daunte Draper) v. Century-National Insurance Co., 27 Fla. L. Weekly Supp. 71a (Fla. Orange County Ct. March 1, 2019) (Addressing the same insurance application from the same defendant insurance company and a similar material misrepresentation defense, the court found the application to be ambiguous as it pertains to “drivers” and ruled for coverage in the plaintiff’s favor.); Physicians Group, LLC a/a/o Kayla Garcia v. Century-National Insurance Company, Case No.: 2018-SC-006610-NC (Fla. Broward County Ct. January 21, 2020) [27 Fla. L. Weekly Supp. 1040a; this issue] (the court finding that the same insurance application at issue here was ambiguous as it pertained to “drivers.”).

22. The Eleventh Circuit in its appellate capacity addressed a substantially similar insurance application with a similar material misrepresentation defense. It found the application to be equivocal and ambiguous as it pertained to “drivers” to be listed, and ruled for coverage in the plaintiff’s favor. Jose Gallardo v. Executive Insurance Company, 9 Fla. L. Weekly Supp. 15a (11th Jud. Cir. (Appellate) for Miami-Dade County November 6, 2001).

23. The Fourth DCA has also addressed a similar insurance application and found it to be ambiguous. See Great Oaks Cas. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 530 So. 2d 1053 (Fla. 4th DCA 1988) (The Fourth DCA, in addressing a similar insurance application with a similar material misrepresentation defense, found the application to be ambiguous as it pertains to “drivers” and resolved the ambiguity in the plaintiff’s favor.)

24. The Court further finds that, as a matter of law, the ambiguous language in the insurance application cannot be overcome by an assertion that the insurance agent “explained” the information the application was seeking to uncover. Therefore, Century-National’s material misrepresentation affirmative defense fails despite Mr. Sheiman’s affidavit in which he asserted that “[a]s is my custom and normal business practice” he asked Mr. Acelouis to disclose “all persons in the household who are 15 years of age or older, whether licensed or not.”

25. Since the insurance application has been deemed to be ambiguous, extrinsic evidence such as Mr. Sheiman’s affidavit cannot be considered as part of the Court’s analysis. The Florida Supreme Court has held that Florida law requires an ambiguous insurance policy to be construed in favor of coverage “without resort to consideration of extrinsic evidence.” Wash. Nat’l Ins. Corp.. v. Ruderman, 117 So. 3d 943, 952 (Fla. 2013) [38 Fla. L. Weekly S511a].

26. Further, Sheiman’s affidavit cannot cure the ambiguity in the insurance application. At best, the affidavit creates another reasonable interpretation of the language, rendering the application ambiguous. Sheiman’s affidavit is insufficient in that it does not assert that he “explained” the ambiguity in the application to Mr. Acelouis. The affidavit lacks specificity, as it does not state that Mr. Sheiman has personal knowledge of his interaction with Mr. Acelouis, only knowledge of his “custom and normal business practice.”

27. Plaintiff, Imaging Center of West Palm Beach, LLC’s cross-motion for final summary judgment is hereby GRANTED, and Defendant, Century-National Insurance Company’s, motion for summary judgment is DENIED.