28 Fla. L. Weekly Supp. 234c

Online Reference: FLWSUPP 2803BELTInsurance — Personal injury protection — Affirmative defenses — Fraud — Staged accident — Medical provider’s motion for summary judgment as to affirmative defense of fraud is granted where insurer failed to file or identify any counter-evidence that would reveal existence of factual issue, and there is no evidence of any sworn statement by insured admitting to fraud or any court records establishing that insured committed fraud, but only the alleged fact that the driver of the other vehicle involved in the accident pled guilty to fraud

ADVANCED X-RAY ANALYSIS, INC., a/a/o Elia Beltran, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 2015-SC-020802. June 4, 2019. Alissa M. Ellison, Judge. Counsel: Pamela Rakow-Smith, Eiffert & Associates, P.A., Orlando, for Plaintiff. John Koplitz, Windhaven Insurance Company, Miami, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT AS TODEFENDANT’S AFFIRMATIVE DEFENSE OF FRAUD

THIS MATTER came before the Court on May 28, 2019 on Plaintiff’s Motion for Summary Judgment as to Defendant’s Affirmative Defense of Fraud (the “Motion for Summary Judgment”). After reviewing the Court file, the motion, having heard arguments of Counsel and, being considered by the Court and otherwise being fully advised of the premises; the Court finds as follows:

I. FACTUAL BACKGROUND

The Assignor, Elia Beltran was involved in a motor vehicle accident on December 6, 2009 (See Defendant’s Response to Plaintiff’s Request for Admissions) and on December 23, 2009, she purportedly received treatment from Plaintiff for the injuries she sustained in the accident. At the time of the accident, Ms. Beltran was insured through a Windhaven Insurance Company policy, which provided Personal Injury Protection Benefits to Ms. Beltran pursuant to Florida Statutes § 627.730-627.7405 (See Notice of Filing Declarations of Coverage Page and Policy of Insurance filed with the Court on December 10, 2018). The policy was in effect on the date of the accident (Id.). As part of her treatment, Ms. Beltran executed an assignment of benefits in favor of Plaintiff (See Statement of Claim). Plaintiff filed this lawsuit and seeks a judgment for the alleged non-payment and/or reduction of personal injury protection benefits (Id.).

This case was originally filed on September 9, 2014, in the County Court of the Ninth Judicial Circuit in Orange County, Florida and ultimately transferred to this Court on June 17, 2015. On December 11, 2018, Plaintiff filed its Motion for Summary Judgment as to Defendant’s Affirmative Defense of Fraud alleging that Defendant has not properly pled its defense of fraud and has no evidence to support its defense that Elia Beltran committed fraud and is not entitled to benefits under Fla. Stat. §627.736 (“PIP Statute”) and its policy of insurance. Defendant’s affirmative defense alleges that Elia Beltran and Plaintiff are not entitled to recover PIP benefits under the policy of insurance and PIP Statute because the motor vehicle accident was staged. Defendant’s affirmative defense is based on the conviction of Tina Figueroa, the other driver involved in the accident. In support of its argument, Plaintiff cites to section (4)(h) of the PIP Statute, Defendant’s policy of insurance, Fla. R. Civ. Pro. 1.120(b), Fla. R. Civ. Pro. 1.510(c), and relevant case law cited in Plaintiff’s motion and provided to the Court at the hearing.

II. LEGAL ANALYSIS

As a preliminary matter, the Court finds that Defendant failed to file any evidence in opposition to Plaintiff’s Motion for Summary Judgment or to specifically identify any evidence previously filed as required by Florida Rule of Civil Procedure 1.510 (c). See cmmt. to Rule 1.510 (“If the movant sustains his initial burden, the opponent has the burden to come forward with counter-evidence revealing a factual issue . . . .”; see also Varnedore v. Copeland, 210 So.3d 741, 746 (Fla. 5th DCA 2017) [42 Fla. L. Weekly D360a] (party may not rely on evidence, even if already filed, unless it is identified in a timely filed notice), State Farm v. Figler Family Chiropractic, 189 So.3d 970, 974 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D805b] (Rule 1.510 requires evidence in support of and in opposition to a motion for summary judgment to be specifically identified prior to the hearing). Notably, Defendant mutually coordinated Plaintiff’s motion for summary judgment to take place on May 28, 2019 and did not file any motions to continue. Despite this fact, Defendant failed to meet its burden to come forth with any counter-evidence which would reveal a factual issue before or at the hearing.

Plaintiff is also entitled to summary judgment as to Defendant’s Affirmative Defense as Defendant has presented no evidence that its insured, Elia Beltran committed fraud or had any involvement in staging the subject accident, as required to deny PIP benefits, pursuant to Section (4)(h) of the PIP Statute and Defendant’s policy of insurance. Section §627.736(4)(h) provides in pertinent part:

(h) Benefits shall not be due or payable to or on the behalf of an insured person if that person has committed, by a material act or omission, any insurance fraud relating to personal injury protection coverage under his or her policy, if the fraud is admitted to in a sworn statement by the insured or if it is established in a court of competent jurisdiction. Any insurance fraud shall void all coverage arising from the claim related to such fraud under the personal injury protection coverage of the insured person who committed the fraud, irrespective of whether a portion of the insured person’s insurance claim may be legitimate, and any benefits paid prior to the discovery of the insured’s person’s insurance fraud shall be recoverable by the insurer from the person who committed the insurance fraud in this entirety . . .

See Fla. Stat. § 627.736(4)(h)(2009)(Emphasis added). Thus, pursuant to the statute, an insurer is required to have either: (1) a sworn statement by the insured admitting to fraud; or (2) a determination by a court that fraud occurred prior to withholding payments. One of these two requirements must be met in order for the insurer to withhold the payment of benefits at the outset. The statute then provides a mechanism pursuant to which an insurer can recover any insurance proceeds previously paid in the event the insured committed insurance fraud.

Likewise, Defendant’s policy of insurance provides, in pertinent:

We do not provide coverage for any “insured” that has made fraudulent statements or engaged in fraudulent conduct in connection with any accident or loss for which coverage is sought under policy.

See Policy filed with the Court, p.14 General Definitions “FRAUD” (Emphasis added). Section IV Part F (A) in the Personal Injury Protection Endorsement states:

We do not provide Personal Injury Protections Coverage for an “insured” if that “insured has committed, by a material act or omission, any insurance fraud relating to Personal Injury Protection under this policy, and if the fraud is admitted to in a sworn statement by the “insured” or if the fraud is established in a court of competent jurisdiction. Any insurance fraud shall void all Personal Injury Protection Coverage arising from the claim with respect to the “insured” who committed the fraud.

See Policy filed with the Court, Personal Injury Protection Endorsement P.21 Section IV Part F (A) FRAUD (Emphasis added).

The Court finds the plain language of the PIP Statute and Defendant’s policy of insurance precludes the payment of the benefits of an insured, if that person committed fraud and the fraud is admitted to in a sworn statement or established in a court of competent jurisdiction. Here, there is no record evidence of any statements of Elia Beltran admitting to fraud, nor any Court records which establish she committed fraud. Rather, the facts as alleged reflect that Tina Figueroa, an unnamed party, pled guilty to fraud in conjunction with the accident giving rise to this case.¹ As such, Plaintiff has met its burden showing no genuine issue of material fact remains on the issue of fraud and Defendant has not provided any evidence to support its defense that Ms. Beltran committed fraud and summary judgment in favor of Plaintiff is proper.

Further, Courts across the state have upheld summary judgment on the issue of fraud when there is no evidence of fraud and thus no genuine issue of material fact on the question of fraud. See 2765 South Bayshore Drive Corp. v. Fred Howland, Inc., 212 So. 2d 911, 914 (Fla. 3d DCA 1968). The Court finds based on the court file and record evidence, Defendant has not set forth any facts or evidence to establish Ms. Beltran committed fraud relating to the subject motor vehicle accident. Thus, Plaintiff’s motion for summary judgment as to Defendant’s affirmative defense of fraud must be granted.

Based on the above, it is hereby ORDERED AND ADJUDGED that:

Plaintiff’s Motion for Summary Judgment as to Defendant’s Affirmative Defense of Fraud is hereby GRANTED.

__________________

¹Although this fact has been referenced in certain documents previously filed with the Court, as discussed above, Defendant failed to specifically identify any such documents in opposition to Plaintiff’s Motion for Summary Judgment and, in any event, the documents were not in admissible form. Regardless, even if these documents had been offered as evidence in opposition to Plaintiff’s Motion for Summary Judgment, the documents only related to Ms. Figueroa and there is no evidence establishing any relationship between Ms. Figueroa and Ms. Beltran other than Defendant’s assertion that Ms. Figueroa was driving the other car involved in the collision at issue.