7 Fla. L. Weekly Supp. 473a
Insurance — Personal injury protection — Affirmative defenses — Material misrepresentation — Insured entitled to summary judgment on claim for PIP benefits because her failure to list her boyfriend who lived in her home on application for PIP insurance was not material misrepresentation — Because insured’s boyfriend, although he was resident of her household, was not a relative, did not drive her vehicle, had his own policy of insurance, was not involved in subject accident, and was not making claim against insurance company with respect to subject accident, misrepresentation by insured was not material either to the acceptance of risk or to hazard assumed by insurer — In order to have been material, misrepresentation would have had to have been related to risk or hazard assumed — Failure to list boyfriend on application could only serve to preclude coverage for claim by boyfriend under insured’s policy
MIREYA YSET, Plaintiff, vs. OCEAN HARBOR CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 97-6754-CC-26(02). April 16, 1999. Bonnie Lano Rippingille, Judge. Counsel: Keith Chasin, for Plaintiff. Albert E. Moon, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came on for hearing on Plaintiff’s Motion to Strike the Defense of Material Misrepresentation and/or Motion for Summary Judgment pursuant to Rule 1.530(a). The Court after having reviewed the motion, the court file, the evidence proffered by Defendant on this issue and having considered argument of counsel and applicable law grants summary judgment for the Plaintiff and strikes the affirmative defense of material misrepresentation.
Prior to the commencement of trial in this cause the Plaintiff moved to strike the affirmative defense of material misrepresentation through a motion in limine. The affirmative defense was based upon the failure of the Plaintiff to list her boyfriend Raul Fraga on the application for personal injury protection insurance. The Court granted the motion and struck the affirmative defense over the objection of the Defendant. Thereafter, the case was tried before a jury and resulted in a verdict in favor of the Plaintiff.
Subsequent to the trial, the Court sua sponte admitted error in striking the affirmative defense of material misrepresentation without prior notice to Defendant. Motions in limine cannot be used as unwritten and unnoticed motions for pre-trial summary judgment. Rice v. Kelly, 483 So. 2d 559 (Fla. 4th DCA 1986). Fla. R. Civil Procedure 1.530(a) permits the Court to open a judgment and take additional testimony and enter a new judgment in non-jury matters.
At the hearing on the motion for summary judgment, the Defendant argued that Fla. Stat. 627.409 creates a jury issue as to whether the Plaintiff’s claim was barred by her failure to list her boyfriend who lived in her home on the application for personal injury protection benefits. A representative of the insurance company testified by deposition that the misrepresentation was material because the policy would not have been issued at the same premium if Fraga had been listed as a resident as required by the application; that the company would have charged a substantially higher premium.
Fla. Stat. 627.409 states that:
(1) … 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 if 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. (Emphasis added).
Although Raul Fraga was a resident of the Plaintiff’s household, he was not a relative, did not drive her vehicle, had his own policy of insurance, was not involved in this accident and was not making a claim in connection with this accident against the insurance company. Therefore the misrepresentation by Plaintiff was not material either to the acceptance of the risk or to the hazard assumed by the insurer within the meaning of Fla. Stat. 627.409. In order to have been material, the misrepresentation would have had to have been related to the risk or hazard assumed. The insurer assumed neither the risk nor the hazard of Fraga driving when it collected the premium from the Plaintiff and provided insurance to her where Plaintiff did not include Fraga as a resident of her household on the application. The “hazard resulting in the loss” insured by the Defendant was bodily injury and property damage to Plaintiff not Fraga. The Plaintiff’s claim for personal injury protection benefits is totally unrelated to her omission or misrepresentation. Failure to list Fraga on the application could only serve to preclude coverage for a claim by Fraga under the Plaintiff’s policy. See Martinez v. General Insurance Co., 483 So. 2d 892, 893 (Fla. 3rd DCA 1986). Compare Abrams v. General Insurance Co., 508 So. 2d 436 (Fla. 3rd DCA 1987).
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiff’s motion for summary judgment is granted.
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