8 Fla. L. Weekly Supp. 121a
Insurance — Automobile — Insured’s action for personal injury protection benefits and lost wages brought against insurer which refused to make payment on ground that insured made material misrepresentation in application by failing to list other resident of household — Summary judgment inappropriate where discovery is still not complete and it has not been established that there exists a “complete absence of genuine triable issues of material fact” — Insurer’s motion for summary judgment denied
Additional ruling in this case at 9 Fla. L. Weekly Supp. 57c
DOUGLAS SMITH, Plaintiff, v. SEMINOLE CASUALTY INSURANCE COMPANY, Defendant. County Court, Thirteenth Judicial Circuit in and for Hillsborough County, Civil Division. Division H. Case No. 00 6042 CC. November 15, 2000. Frank A. Gomez, Judge. Counsel: Suzette M. Alfonso, Tampa, for Plaintiff. Joseph F. Kinman, Jr., Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court November 1, 2000, on Defendant’s Motion For Summary Judgment, and the Court having heard argument of counsel, reviewed the file, and being otherwise fully informed in the premises, it is hereby:
ORDERED AND ADJUDGED:
That based upon the pleadings, correspondences, affidavits and depositions, it has not been established that there exists a “complete absence of genuine triable issues of material fact” and accordingly, as a matter of law, SEMINOLE CASUALTY INSURANCE COMPANY is not entitled to a summary judgment pursuant to Florida Rule of Civil Procedure 1.510.FINDINGS OF FACT
1. Plaintiff completed an application and entered into a contract of insurance with SEMINOLE CASUALTY and was insured under the subject policy.
2. Plaintiff, while completing the above mentioned application did not list the names of two (2) persons residing with him at the time.
3. An affidavit of the Plaintiff contends that the application was actually filled out by a representative of SEMINOLE CASUALTY. Plaintiff alleged that the agent did not ask questions regarding the names of others residing in the same household.
4. Plaintiff contends that the only other resident, at the time, was a person who, to the best of his knowledge was not licensed to drive. Also, to the best of his knowledge never drove an automobile.
5. The affidavit of Ivy Hirth, the other resident, supports Plaintiff in his contention that he did not know she was licensed to drive and that she did not own nor drive an automobile.
6. Plaintiff has brought this cause of action, seeking payment of personal injury protection (PIP) benefits relating injuries and lost wages suffered as a result of an automobile accident that occurred on or about November 26, 1997.
7. Plaintiff submitted bills to SEMINOLE CASUALTY for payment which Plaintiff alleges remain unpaid.
8. SEMINOLE CASUALTY has refused to make payment alleging that Plaintiff’s failure to list the other resident residing in his household was a material misrepresentation and under Florida law, recovery is precluded.LAW
1. This Court holds that the merest possibility of the existence of a genuine issue of material fact precludes the entry of a final summary judgment. Nard, Inc. v. Devito Contracting & Supply, Inc., 25 Fla.L.Weekly D2500 (Fla. 2d DCA 2000); Also see Holl v. Talcott, 191 So.2d 40 (Fla. 1996); and Matarese v. Leesburg Elks Club, 171 So.2d 606 (Fla. 2d DCA 1965).
2. This Court finds the case of Yset v. Ocean Harbor Casualty Insurance Company, 7 Fla L. Weekly Supp. 473 (County Court, 11th Judicial Circuit, Miami-Dade County), to be persuasive, finding the facts of this case analogous to that case.
3. Summary Judgment is inappropriate when discovery is still not complete. Epstein v. Guidance Corp., Inc., 736 So.2d 137 (Fla. 4th DCA 1999).
WHEREFORE it is:
FURTHER ORDERED AND ADJUDGED:
1. Defendant’s Motion for Summary Judgment is denied.
2. That this Court reserves jurisdiction to tax any applicable fees and cost.
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