28 Fla. L. Weekly Supp. 11a
Online Reference: FLWSUPP 2801ESCA
Insurance — Personal injury protection — Application — Material misrepresentations — Error to enter summary judgment in favor of medical provider on material misrepresentation defense where insurer identified summary judgment evidence from which jury could have concluded that insured made material misrepresentation regarding garaging location of vehicle in order to procure policy — No error in entering summary judgment on issues of reasonableness, relatedness, and necessity of treatment where provider established prima facie case on issues and insurer presented no countervailing evidence
GEICO INDEMNITY COMPANY, Appellant, v. Y.D. MEDICAL & REHABILITATION CENTER, INC., a/a/o Rene D. Torres Escalona, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2018-000345-ap-01. LT. Case No. 2014-1212-CC-26. February 26, 2020. An Appeal from the County Court for Miami-Dade County, Gloria Gonzalez-Meyer, Judge. Counsel: Louis Schulman, Rebecca O’Dell Townsend and Scott W. Dutton, Dutton Law Group, P.A., for Appellant. Marcus Griggs and Tim Snedaker, Corredor, Husseini & Snedaker, P.A.;, and David B. Pakula, David B. Pakula, P.A., for Appellee.
(Before TRAWICK, WALSH, and REBULL, JJ.)
(WALSH, J.) GEICO raises two issues in this appeal. First, GEICO argues the trial court erroneously granted summary judgment for the medical provider, Y.D. Medical & Rehabilitation Center (“the Provider”) on its affirmative defense of material misrepresentation. Second, GEICO argues that the trial court incorrectly granted summary judgment on damages, finding that the medical services were reasonable, related to the accident and medically necessary. We reverse the trial judge’s summary judgment on GEICO’s affirmative defense but affirm on the trial judge’s order on damages.
Record Below on Summary Judgment
The insured, Rene D. Torres Escalona (“Torres”) procured an online Personal Injury Protection insurance policy with GEICO. According to Torres, the online transaction occurred in an unorthodox manner. Torres claimed in his recorded statement to GEICO that a man known simply as “Louis” or “Luis” obtained the policy for him over the phone. When told by GEICO that the policy was purchased online and not by phone, Torres said he searched online and found “Luis,” provided his personal information and Luis conducted the online transaction. Torres did not know Luis’ last name. He did not recall exactly how he found Luis. He had no contact information for Luis, nor any records from any computer.
GEICO introduced screen shots of the information submitted electronically by the applicant to procure the policy. GEICO did not retain the actual online application1 containing the questions prompting the information captured in the screen shots. But GEICO’s expert averred that the screen shots captured the verbatim keystrokes by the applicant. Under “Garage Location” the screen shots reflected that the car was kept at “14398 NE 14 Avenue, Okeechobee, FL 34972.” The computer system bounced back a message to the applicant suggesting “14th” instead of “14,” and the change to address was affirmatively accepted (by Torres or “Luis”) as: “14398 NE 14th Avenue” in Okeechobee, Florida. In fact, this address does not exist.
Once coverage was confirmed, the program automatically ran Torres’ driving record with the department of motor vehicles (DMV). The applicant elected an option for UM coverage using Torres’ electronic signature.
Torres testified in deposition that he lived at an address in Miami, Florida. While he claimed to have lived with his mother and sister at their Miami home address for the past seven years, the traffic crash report reflected three different Miami addresses for his mother, sister and himself. GEICO presented evidence that for any online Miami application, GEICO required a subsequent signed, written application. Because of rampant fraud, GEICO did not write electronic policies for vehicles garaged in Miami without later obtaining signed, written applications.
When asked how the policy was purchased, Torres told GEICO that he used his cousin’s credit card over the phone to pay for the policy. However, an online (not telephonic) credit card payment was made to purchase the policy, after a five-hour period during which the payment function was opened and closed five times. On the recorded call, Torres spelled out his cousin’s name as “R-E-I-N-I-E-R I-T-U-R-I-A-G-A.” Later in deposition, Torres testified that his cousin’s name is Reinier Rafael Escalona, and that he had no cousin named Reinier Ituriaga, even though he was the one who audibly spelled out his cousin’s name to GEICO.
Torres also did not recognize the email address used in the online application, although this address remained on the account throughout the duration of Torres’ policy and was never changed. Nor could he explain why the phone number of “Juan Jose Cortez,” a name he did not recognize, was used throughout his policy.
After obtaining the policy, Torres called GEICO because he never received his written policy. He was told that the garaging address was in Okeechobee, Florida and claimed to have corrected the mistake. Torres testified in deposition that he always resided in Miami and that he gave GEICO his correct address. Yet even after this phone call, while Torres’ mailing address was corrected to reflect where he received mail, the garaging address remained at the non-existent address in Okeechobee, Florida.
GEICO argued that had it known that the vehicle was kept in Miami, the premium for the policy would have been $941.80 greater than what was charged. Stated differently, GEICO would not have written a policy for the premium charged had GEICO known of the true vehicle location.
The trial court granted summary judgment to the Provider on the affirmative defense of material misrepresentation.
Standard of Review
The standard of review of an order granting summary judgment is de novo and requires this court to view the evidence in the light most favorable to GEICO, the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1605a].
Statutory Defense or Policy Defense of Material Misrepresentation
As a preliminary issue, GEICO argues that it may base its affirmative defense of material misrepresentation upon the statutory defense set forth in section 627.409(1), Florida Statutes. This statute permits rescission for misrepresentation by “[a]ny statement or description made by or on behalf of an insured” (emphasis added). Under the statute, misrepresentations need not be purposeful or knowing to void the policy. Mr. Torres’ claim that “Luis” made such misrepresentation might therefore fall within the proscribed statutory conduct.
However, the Provider argues that GEICO is bound by the terms of its policy. GEICO’s policy provides for rescission only when a person “knowingly conceals or misrepresents” a material fact or circumstance. The Provider is correct, and the policy language controls over the statute on GEICO’s defense. See, e.g., Green v. Life & Health of America, 704 So. 2d 1386 (Fla. 1998) [23 Fla. L. Weekly S42a] (parties to insurance contract are bound by “upon knowledge and belief” contractual policy language which created higher burden than statute for insurer to rescind for misrepresentation).2
Summary Judgment on Material Misrepresentation
Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. State Farm Mut. Auto. Co. v. Gonzalez, 178 So. 3d 448, 450 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D2352a], citing State Farm Mut. Auto. Ins. Co. v. Pressley, 28 So. 3d 105, 107 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D150b]. The party moving for summary judgment must present evidence supporting its claim and once it does, “the opposing party must come forward with counterevidence sufficient to reveal a genuine issue.” R. Plants, Inc. v. Dome Enters., 221 So. 3d 752, 753-54 (Fla. 3d DCA 2017) [42 Fla. L. Weekly D1319a], citing Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979).
Turning to the arguments presented on summary judgment, GEICO argues that it is entitled to a jury trial on its defense of material misrepresentation. GEICO argues that Torres’ story — that he procured insurance by calling “Luis” who provided GEICO a non-existent garaging address — is wholly incredible. GEICO argues that the garaging location of the vehicle was provided online to obtain a cheaper policy Torres never would have obtained had he disclosed his Miami garaging address.
GEICO also points out that its screen shot evidence proves every keystroke made to input the online application including the non-existent Okeechobee garaging address. Further, even after Torres’ later phone call where he alleges that he corrected the address, the screen shots still contained the non-existent Okeechobee garaging address. This meant that when Torres called GEICO, he only corrected his mailing address, not the garaging address (which makes sense given his complaint that he had not received his policy in the mail). And had Torres truthfully corrected the garaging address, GEICO would have, based on its standard practice for Miami policies, required a written, signed paper application, which never occurred.
In response, the Provider argues that no jury could conclude that a misrepresentation made by “Luis” — even if deemed an agent of Torres — was “knowing.” And that even if a misrepresentation occurred, GEICO had constructive notice of Torres’ actual address because GEICO conducted a DMV records check, and Torres called GEICO to provide the correct address. Alternatively, GEICO waived its right to void the policy when it conducted a DMV search of Torres, which, along with Torres’ phone call, corrected the address.
Both GEICO and the Provider make compelling arguments. Perhaps “Luis” was a fictional character. Or perhaps Torres was an innocent, high-school educated patsy of “Luis,” who lied online without Torres’ authorization. Perhaps Torres simply kept bad records and did everything he could to correct an inadvertent misunderstanding with GEICO. Or perhaps GEICO’s evidence proves that Torres made false statements to procure a cheaper policy.
On summary judgment, a judge may not weigh evidence or resolve conflicting facts and fair inferences. The insurer identified summary judgment evidence from which a jury could have concluded that Torres made a material misrepresentation to procure his insurance policy and therefore the policy was properly rescinded. There was sufficient evidence in the record below which would enable a jury to support the defense of material misrepresentation, and accordingly, it was error to grant summary judgment. See Leybovich v. SecureAlert, Inc., 237 So. 3d 1104 (Fla. 3d DCA 2017) [43 Fla. L. Weekly D65a].3 Accordingly, we reverse the trial court’s order granting summary judgment on the defense of material misrepresentation and remand for a jury trial on the defense.
Summary Judgment on Reasonable, Related and Medically Necessary Services
GEICO also argues that the trial court erred in granting summary judgment on the ground that the medical care rendered was reasonable in price, related to the accident and medically necessary. The Provider moved for summary judgment, relying on the affidavit of Kevin Wood, D.C. GEICO presented no countervailing evidence below to refute the Provider’s summary judgment evidence which established a prima facie case. Accordingly, we affirm on the matter of the damages sustained by the claimant. Should the Provider prevail at trial on the sole issue of the affirmative defense of material misrepresentation, judgment shall be entered in the amount of undisputed damages, $12,909.99, plus interest, costs and fees.
Appellee’s Motion to Tax Appellate Attorney’s Fees is granted, conditioned upon prevailing in the trial court and only with respect to appellate fees incurred on the issue of whether the medical services were reasonable, related and medically necessary.
Appellant’s Motion to Tax Appellate Attorney’s Fees is granted, conditioned upon the trial court’s determination that GEICO satisfied the requirements of section 768.79, Florida Statutes (2018) and Florida Rule of Civil Procedure 1.442. and only with respect to appellate fees incurred on the issue of the cross motions for summary judgment on Appellant’s affirmative defense of material misrepresentation. (TRAWICK and REBULL, JJ., concur.)
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1Oddly, GEICO no longer has access to the online application in this case, but GEICO introduced evidence that Torres had and still has access to his online application containing the questions prompting the online responses. Torres has never provided the online application.
2We go no further than to hold that the contract between the parties controls the affirmative defense of material misrepresentation in this case. At oral argument, GEICO urged us to find that even under the policy, a misrepresentation need not be “knowing.” However, GEICO failed to make this argument in its briefs, depriving the Appellee Provider of the opportunity to respond. Therefore, an analysis of the policy language is not properly before us.
3One judge has recently criticized decisions which quash summary judgment because a “merest possibility” of a genuine issue of material fact or “scintilla” of evidence exists. In this judge’s opinion, the inquiry should be whether “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Asking whether there exists a “scintilla of evidence,” “slightest doubt,” or “merest possibility” does not advance that inquiry.” Mobley v. Homestead Hosp., Inc., 45 Fla. L. Weekly D2a (Fla. 3d DCA Dec. 26, 2019) (Logue, J. concurring). The case before us does not present a speculative dispute, however, but an objectively disputed defense.
