27 Fla. L. Weekly Supp. 753a
Online Reference: FLWSUPP 2708ACELInsurance — 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 disclose all persons in household age 15 or older whether licensed or not
OCEAN RIDGE CHIROPRACTIC INC, a/a/o Bertrand Acelouis, Plaintiff, v. CENTURY-NATIONAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE16015150, Division 52. August 7, 2019. Giuseppina Miranda, Judge. Counsel: Tara L. Kopp, Schuler, Halvorson, Weisser, Zoeller, Overbeck, P.A., West Palm Beach, for Plaintiff. Amy Taylor and William J. McFarlane, Coral Springs, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT AND GRANTING, IN PART,PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court for hearing on June 25, 2019 upon Defendant’s Motion for Summary Judgment relative to their affirmative defense of material misrepresentation 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, the Court makes the following findings of fact and conclusions of law:
1. Bertrand Acelouis (hereinafter referred to as “Acelouis’) applied for automobile insurance with Defendant, Century-National Insurance Company, on April 28, 2015. Acelouis applied in-person at Insurance World of Delray Beach, an insurance agency, with the assistance of insurance agent Evan Sheiman (hereinafter referred to as “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.”
(emphasis added).
Beneath this language the application provides a table that includes (in pertinent part) columns with the following titles:
“Name of Driver (Exactly as shown on Driver’s License)”; “License Number”; and “State”.
(emphasis added).
3. In the table beneath the “DRIVER INFORMATION” section Acelouis only disclosed himself.
4. The Court notes that there are NO sections and/or tables that reference “household member(s)” or “family member(s)” or any similar distinctions (for persons which would not be designated as “children” and that are not “drivers”).
5. 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.”
6. Acelouis wrote “N/A” below the “AGREEMENT TO EXCLUDE NAMED PERSONS” section.
7. 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.
8. 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.”
(emphasis added).
9. Acelouis initialed next to all of the “CERTIFICATION OF APPLICANT” statements, including the one described above.
10. Century-National issued Acelouis a policy of insurance that included $10,000.00 in personal injury protection (“PIP”) coverage.
11. At the time that Acelouis completed the insurance application he resided with his girlfriend, Maude Charles (hereinafter referred to as “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.
12. On May 14, 2015 Acelouis was involved in a motor vehicle accident while driving the insured vehicle and, as a result thereof, suffered injuries. Acelouis sought and received medical treatment for these injuries from Plaintiff, Ocean Ridge Chiropractic, Inc.
13. Acelouis assigned his PIP beneifts to Ocean Ridge, and Ocean Ridge submitted bills to Century-National which were denied.
14. Ocean Ridge brought this suit against Century-National for failure to pay PIP benefits. As its sole affirmative defense, Century-National alleged that 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.”
15. Century-National moved for summary judgment based on its material misrepresentation affirmative defense.
16. 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.”
17. Ocean Ridge 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 Charles since Charles was not a “driver” and that the insurance application was ambiguous.
18. 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. 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 that appear to pertain to licensed drivers.
19. The Court further finds that, as a matter of law, any ambiguity of 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 Sheiman’s affidavit in which he asserted that he asked Acelouis to disclose “all persons in the household who are 15 years of age or older, whether licensed or not.”
Accordingly, it is hereupon ORDERED and ADJUDGED, as follows:
Defendant, Century-National Insurance Company’s, Motion for Summary Judgment is DENIED. It is further ORDERED that Plaintiff, Ocean Ridge Chiropractic, Inc.’s cross-Motion for Final Summary Judgment is GRANTED, in part, as to Defendant’s affirmative defense of material misrepresentation as outlined herein. This matter will proceed to trial on the remaining issues.
