27 Fla. L. Weekly Supp. 979a
Online Reference: FLWSUPP 2711MONTInsurance — Personal injury protection — Application — Misrepresentations — Where PIP policy application requests information for “Drivers,” insured was not required to disclose household member who did not drive insured vehicle — Insurer may not rely on premium quote documents in support of claim that disclosure of additional household member would have resulted in increased premium where insurer claimed that documents were privileged during discovery — Absent quote documents, there is no evidence that disclosure of household member would have resulted in higher premium — Where insurer violated PIP statute by failing to pay or deny claim within 30 days, and did not invoke additional time available under section 627.736(4)(i), insurer waived ability to investigate or deny claim based on alleged material misrepresentation
ORLANDO MEDICAL AND WELLNESS, (a/a/o Moises Montoya), Plaintiff, v. CENTURY-NATIONAL INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 18-CC-040604. ORLANDO MEDICAL AND WELLNESS, (a/a/o Jennifer Brea), Plaintiff, v. CENTURY-NATIONAL INSURANCE COMPANY, Defendant. Case No. 18-CC-040610. January 9, 2020. Daryl M. Manning, Judge. Counsel: Timothy A. Patrick, Patrick Law Group, P.A., Tampa, for Plaintiff. Joseph Wolfe, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFINAL FOR SUMMARY JUDGMENT
THIS MATTER having come before the court on October 28, 2019 on Plaintiff’s Motion for Final Summary Judgment. The court having considered the Motion, the arguments presented by the parties, applicable law, and being otherwise fully advised, finds,
1. This is a consolidated Declaratory action under Florida Statutes Chapter 86 seeking a coverage declaration based upon Defendant’s rescission of the subject policy. Defendant’s rescission was based upon an alleged material misrepresentation for a failure by the named insured, Jennifer Brea, to list a household member on the insurance application.
2. Plaintiff’s motion for summary judgment seeks entry of summary judgment arguing that the bold insurance policy application language of DRIVER is ambiguous and, as such, must be construed against its drafter, the Defendant. Plaintiff further argues that, at the end of 90 days after submission of the claim, the insurer must pay or deny the claim. Lastly, Plaintiff argues that the Defendant failed to pay interest on the returned premiums and as such, the insured was not returned to the status quo.
3. Defendant contends that the alleged household members should have been listed on Pages 1 and 5 of the insurance policy application. Defendant’s policy application states:
“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”.
Name of driver (Exactly as shown on Driver’s License)
4. It is undisputed that the alleged household member, Janet Contreras, was not involved in the subject accident and did not drive the insured vehicle at any time.
5. In Better Care Chiropractic Center, LLC (a/a/o Augustin, Cyndia Rose) v. Titan Ins. Co., (9th Jud. Cir., Orange County, Case No. 2013-CC-1994-O, April 6, 2017, Faye L. Allen, Judge) [25 Fla. L. Weekly Supp. 180a], the court held that the following policy application section language, DRIVER AND HOUSEHOLD INFORMATION, was ambiguous in granting summary judgment for the Plaintiff and denying summary judgment for the Defendant. Also, Order Granting Plaintiff’s Motion for Summary Judgment and Denying Defendant’s Motion for Summary Judgment. Florida Pain & Wellness Centers, Inc. (a/a/o Dennis P. Williams) v. American Colonial Ins. Co., (Fla. 9th Jud., Orange Cty. Ct., November 16, 2017, Judge Eric H. Dubois) [25 Fla. L. Weekly Supp. 815b].
6. The Court finds that language of Defendant’s application for insurance requests information for DRIVERS, as opposed to household members. As such, the alleged household member was not required to be listed on said application for insurance inasmuch as it is undisputed that the household member did not the insured vehicle.
8. Defendant filed an affidavit from John Mejia, its underwriting corporate representative, in an attempt to support its contention that the failure to list the alleged household members resulted in an increased premium for the subject policy. In response, Plaintiff filed a Motion to Strike Mr. Mejia’s affidavit and attachments based upon the deposition of Mr. Mejia. During the deposition of Mr. Mejia, Plaintiff inquired as to what documents Defendant had in its possession to support a premium increase regarding the undisclosed household member. Beginning on Page 25, Mr. Mejia referred to premium “quote” documents. Plaintiff requested that these “quote” documents be attached to the deposition transcript. Defendant’s counsel refused to allow said documents to be attached claiming that said documents were privileged.
9. Since a party is not permitted to use this objection as both a sword and a shield, the Court will not allow Defendant to rely upon any documents or evidence that the Defendant objected to as work product privilege and failed to disclose to Plaintiff on those grounds during the discovery phase of the case. Heath Diagnostics of Orlando, LLC (a/a/o Tonya Shaw) v. State Farm Mut. Auto. Ins. Co., 23 Fla. L. Weekly Supp. 966a (Fla. 17th Jud. Cir. Ct., February 11, 2016, John D. Fry, Judge); Defendant shielded itself from discovery of information that goes to the very heart of this case and is now attempting to use that same information to defeat Plaintiff’s case at trial. When the Defendant refused to provide the discovery responses, it did so at its own peril and cannot now rightfully complain that it is barred from using its trade secret as a sword. Clear Vision Windshield Repair (a/a/o Richard Voss) v. Government Employees Ins. Co., 23 Fla. L. Weekly Supp. 649a (Fla. 17th Jud. Cir. Ct., May 11, 2015, Robert W. Lee, Judge).
10. As such, there is no evidence in the record that the premium rate would have been any different with the disclosure of the alleged household member on the insurance application.
11. At the end of 90 days after submission of the claim, the insurer must pay or deny the claim. Court found terms in application for insurance were ambiguous. Insurer also failed to pay interest on premiums and fees. Colonial Medical Center (a/a/o Daunte Draper) v. Century-National Ins. Co., 27 Fla. L. Weekly Supp. 71a (Fla. 9th Jud. Cir. Orange Cty. Ct., Case No. 16-CC-13154-O, March 1, 2019, Faye Allen, Judge) citing to GEICO Indemnity Co. v. Central Florida Chiropractic Care (a/a/o David Cherry) v. GEICO Ind. Co., FLWSupp 2608CHER (9th Jud. Cir. Orange County [Appellate], Case No.: 2016-CV-000038-A-O, May 11, 2017, Judge Steve Jewett) [26 Fla. L. Weekly Supp. 613a] wherein the court stated that the legislative intent of the Section (4)(i) of the 2013 Amendment was to extend the investigative time period available to the insurer, while also mandating that the claim must be denied or paid 30 days following the initiation of the claim.
12. Because the Defendant violated the PIP statute by failing to pay or deny the claim within 30 days and did not invoke the additional time limitation under Fla. Stat. 627.736(4)(i), they waived their ability to investigate or deny the claim for material misrepresentation. As such, Plaintiff’s Motion for Final Summary Judgment is HEREBY GRANTED.
