27 Fla. L. Weekly Supp. 314b
Online Reference: FLWSUPP 2703TRUJInsurance — Personal injury protection — Coverage — Declaratory action — Insured’s motion for summary judgment as to affirmative defense of no coverage due to material misrepresentation is denied where no such affirmative defense has been raised, and evidence does not show that policy has been cancelled or voided — Standing — Notwithstanding fact that insured has assigned her benefits to medical providers, she has standing to pursue declaratory action seeking determination of coverage in light of insurer’s alleged voiding of policy
NATASHA TRUJILLO, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 18-CC-042392, Division I. April 22, 2019. Joelle Ann Ober, Judge. Counsel: Timothy A. Patrick, Patrick Law Group, P.A., Tampa, for Plaintiff.
ORDER DENYING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENTandORDER DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT AS TO STANDING
THIS MATTER came before this Court at a hearing on February 5, 2019, on Plaintiff’s Motion for Final Summary Judgment filed October 1, 2018 and Defendant’s Motion for Final Summary Judgment as to Standing filed January 4, 2019.1 Having reviewed and considered Plaintiff’s Motion, Defendant’s Motion, each party’s opposition, the 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.
2. Plaintiff’s Motion seeks summary judgment as to the “[a]ffirmative defense of no coverage due to an alleged material misrepresentation[ ].” Pl.’s Mot. for SJ p. 1 (Oct. 1, 2018). Plaintiff argues that once a material misrepresentation arose, Defendant had obligated itself to give notice to Plaintiff of a premium increase and because Defendant did not do so, Defendant was not entitled to cancel the policy. Id. at pp. 1-2.
3. With regard to Plaintiff’s Motion, the Court first notes that the defense of material misrepresentation has not been raised in this matter.2 Additionally, the summary judgment evidence before the court does not show that the policy has been voided/cancelled. In fact, the summary judgment evidence reflects that payments have been made under the policy to various medical providers. As such, Plaintiff’s Motion for Final Summary Judgment is denied.
4. Defendant’s Motion seeks summary judgment as to Plaintiff’s standing in this matter. Defendant argues that Plaintiff “has assigned all of her benefits” to various healthcare providers and as such Plaintiff lacks standing. See Def.’s Mot. for SJ p. 1 (Jan. 4, 2019).
5. Plaintiff’s action is an action for declaratory judgment seeking a determination of coverage in light of an alleged voiding of coverage by Defendant due to an alleged material misrepresentation by Ms. Trujillo on her insurance application. This is distinguishable from a PIP breach of contract action seeking benefits and the cases cited by the Defendant, which involve actions for benefits due under the PIP policy. As such, under the circumstances of this case, Plaintiff has standin1g to pursue the declaratory judgment action.
Based on the foregoing, it is therefore ORDERED AND ADJUDGED
1) Plaintiff’s Motion for Final Summary Judgment is hereby DENIED.
2) Defendant’s Motion for Final Summary Judgment as to Standing is hereby DENIED.
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1The parties agreed to hear Defendant’s Motion as well as Plaintiff’s at the February 5, 2019 hearing.
2The Court also notes that the affirmative defense of no coverage due to material misrepresentation is not raised in Defendant’s Answer and Affirmative Defenses filed March 6, 2019.
