7 Fla. L. Weekly Supp. 659a
Insurance — Automobile — Error to enter summary judgment in favor of insurer which provided comprehensive coverage for truck which was stolen from in front of insured’s home on ground that insured made material misrepresentation on policy application by failing to list name of niece who was licensed driver living at insured’s home — Record failed to reveal that omission of niece’s name from application was related to risk or hazard of truck being stolen, and no evidence was presented that theft arose out of niece’s use of vehicle — Whether or not insured falsely represented material facts that induced insurer to issue a policy, solely in reliance on those facts, presents questions of fact to be resolved by jury
LAZARO ORTEGA, Appellant, v. UNION AMERICAN INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 99-281 AP. Lower Case No. 98-8759 CC25(1). Opinion filed July 27, 2000. An Appeal from the County Court for Miami-Dade County. Jose M. Rodriguez, Judge. Counsel: William K. Terry, Jr., for Appellant. Christopher T. Lemos, for Appellee.
(Before WILLIAM JOHNSON, ROSA RODRIGUEZ and MARILYN MILIAN, JJ.)
(PER CURIAM.) The Appellant, the Plaintiff below, appeals the granting of the Defendant’s motion for summary judgment.
The function of a court in reviewing a motion for summary judgment is solely to determine whether the appropriate record presented in support of summary judgment conclusively shows that the plaintiff cannot prove the claim alleged as a matter of law. Hervey v. Alfonso, 650 So. 2d 644, 646 (Fla. 2d DCA 1995). See Fla. R. Civ. P. 1.510(c); see also Romero v. All Claims Ins. Repairs, Inc., 698 So. 2d 605, 606 (Fla. 3d DCA 1997) citing Albelo v. Southern Bell, 682 So. 2d 1126, 1129 (Fla. 4th DCA 1996); Moore v. Morris, 475 So. 2d 666 (Fla. 1985). Further, “the presumption of correctness inuring in a trial court’s ruling granting a motion for summary judgment `based upon a written record of pleadings, affidavits and depositions is not as strong as where the court heard the witnesses itself or ruled on conflicting evidence.’ ” Alfonso, 650 So. 2d at 646.
On January 10, 1998 the Plaintiff, Lazaro Ortega (“Ortega”) purchased a policy of insurance from the Defendant, Union American Insurance Company (“UAIC”). The policy provided comprehensive loss coverage on Ortega’s 1995 Isuzu truck. In applying for the policy, Ortega failed to list, as required by the application, the name of his niece, Yamilet Ortega (“Yamilet”), who was a licensed driver living at his home. The policy did not provide any insurance coverage for Yamilet, nor was a premium charged for her. On July 14, 1998 the Isuzu truck was stolen from outside of Ortega’s home. Ortega then made a claim for the loss. UAIC denied coverage claiming that pursuant to § 627.409(1), Fla. Stat. (1996), Ortega’s failure to list Yamilet on the application was a material misrepresentation on the insurance application which rendered the policy void. Summary judgment was subsequently entered in favor of the Defendant, UAIC.
Section 627.409(1), Fla. Stat. (1996) provides that,
(1) Any statement or description made by or on behalf of an insured or annuitant in an application for an insurance policy or annuity contract, or in negotiations for a policy or contract, is a representation and is not a warranty. A misrepresentation, omission, concealment of fact, or incorrect statement may prevent recovery under the contract or policy only if any of the following apply:
(a) the misrepresentation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer.
(b) If the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss.
Pursuant to this section, a material omission or misrepresentation, in an insurance application may void the policy and prevent coverage. See also, Travelers Insurance Company v. Zimmerman, 309 So. 2d 569, 570 (Fla. 3d DCA 1975). Even if unintentional, a material omission or misrepresentation can warrant denial of coverage. Continental Assurance Co. v. Carroll, 485 So. 2d 406 (Fla. 1986); Martinez v. General Ins. Co., 483 So. 2d 892, 894 (Fla. 3d DCA 1986).
However, subsection (2) of § 627.409, Fla. Stat. limits the application of subsection (1) to certain situations. Subsection (2) provides as follows:
A breach or violation by the insured of any warranty, condition, or provision of any wet marine or transportation insurance policy, contract of insurance, endorsement, or application therefor does not void the policy or contract, or constitute a defense to a loss thereon, unless such breach or violation increased the hazard by any means within the control of the insured.
(emphasis added). Section 627.409(2) specifically requires that the violation increase the hazard to the insurance company. Pickett v. Woods, 404 So. 2d 1152, 1153 (Fla. 5th DCA 1981). The statute is intended to prevent insurers from avoiding coverage on technical omissions playing no part in the loss. Woods, 404 So. 2d at 1153.
The record in the instant case fails to reveal that the omission of Yamilet’s name from the application had a relation to the risk or hazard UAIC was insuring, or the specific loss from theft. In an insurance context, the term “hazard” has been interpreted to mean danger to the insured property itself. Eastern Ins. Co. v. Austin, 396 So. 2d 823, 825 (Fla. 4th DCA 1981). The vehicle was stolen from Ortega’s home. The fact that Yamilet lived in the house, or that she was not listed on the application has not been shown to have any relevancy to the hazard of the truck being stolen. Further, no evidence has been presented that the theft arose out of Yamilet’s use of the vehicle. Absent any relation between Ortega’s omission and the hazard insured or loss incurred, UAIC cannot avoid coverage. Martinez v. General Ins. Co., 483 So. 2d 893-94, (Fla. 3d DCA 1986).
Further, note that courts have held, time and time again, that whether or not an insured falsely represented material facts that induced the insurer to issue a policy, solely in reliance on those statements, presents questions of fact to be resolved by a jury. Beneby v. Midland Nat. Life Ins. Co., 402 So. 2d 1193, 1194 (Fla. 3d DCA 1981) (summary judgment for insurer reversed and remanded for further proceedings); Underwriters Nat. Assur. Co. v. Harrison, 338 So. 2d 58, 59 (Fla. 3d DCA 1976) (jury verdict for insured affirmed); Zimmerman, 309 So. 2d at 570; Lamm v. Prudential Ins. Co. of America, 179 So. 2d 238, 239 (Fla. 3d DCA 1965) (summary judgment for insurer reversed and remanded for jury trial); but see Guerrero v. John Hancock Mutual Life Ins. Co., 522 So. 2d 1032, 1033 (where evidence is clear and uncontradicted the materiality of the misrepresentation shall be decided as a question of law).
Situations where an alleged misrepresentation or omission has been advanced, as reason to deny coverage, should be examined to determine whether under the particular circumstances the applicant reasonably could be held responsible for the misrepresentation or omission. Zimmerman, 309 So. 2d at 570. In the instant case, material issues of fact remain concerning the alleged misrepresentation or omission and whether such misrepresentation or omission increased the hazard by any means within the control of the insured. See § 627.409(2), Fla. Stat. (1999).
Accordingly, the lower court order granting summary judgment for the Defendant is REVERSED and the cause is REMANDED to the trial court for further proceedings consistent with this opinion. The Appellant’s Motion for Appellate Attorney’s Fees is GRANTED pursuant to § 627.428, Fla. Stat. (1999) and the matter is also REMANDED for a determination as to amount of such fees.
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