9 Fla. L. Weekly Supp. 851d
Insurance — Automobile — Rescission of policy — Material misrepresentations on application — Where evidence establishes that insurer would not have issued policy to insured at same premium if residence of insured’s daughter within household had been disclosed on application, insurer did not err in declaring policy void ab initio, denying coverage thereunder, and returning all premium payments to insured — Final summary judgment granted in favor of insurer
EPSY PETTY, Plaintiff, vs. NATIONAL INSURANCE ASSOCIATION-A RECIPROCAL d/b/a GOAMERICA AUTO INSURANCE, a foreign insurance company, Defendant. County Court, 2nd Judicial Circuit in and for Leon County, Civil Division. Case No. SC-01-7222. October 4, 2002. Judith Hawkins, Judge. Counsel: William D. Hall, Jr., for Plaintiff. Carrie Mendrick Roane, Butler Burnette Pappas LLP, Tallahassee, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court upon Defendant, NATIONAL INSURANCE ASSOCIATION-A RECIPROCAL d/b/a GOAMERICA AUTO INSURANCE’s (hereinafter “GOAMERICA”) Motion For Final Summary Judgment. The Court, after reviewing the pleadings, evidence filed of record, and entertaining argument of counsel, it is hereby
ORDERED AND ADJUDGED as follows:
FINDINGS OF FACT AND STATEMENT OF LAW
1. On March 10, 1999, the Plaintiff, EPSY PETTY (hereinafter “Ms. Petty”) applied for automobile insurance with GOAMERICA. In her application for insurance, Ms. Petty listed 1921 Holmes Street, Tallahassee, Florida, as her residential address. The “Drivers” portion of the application for insurance requested Ms. Petty to “LIST ALL FAMILY MEMBERS, RESIDENTS OF THE HOUSEHOLD AGE 14 AND OVER, AND ANY OTHER NON-RESIDENT DRIVERS.” In response, Ms. Petty only listed herself. In reliance upon the representations made by Ms. Petty in her Application for Insurance, GOAMERICA issued an automobile insurance policy to Ms. Petty at a premium rate of $391.00 for a one year policy term.
2. In July 1999, the vehicle insured under Ms. Petty’s GOAMERICA policy was involved in an auto accident. At the time of the accident, the vehicle was being driven by Ms. Petty’s daughter, Wanda Petty Faison (hereinafter “Ms. Faison”).
3. Upon investigating the claims presented, GOAMERICA discovered that Ms. Petty’s daughter, Ms. Faison, had in fact been residing with Ms. Petty at 1921 Holmes Street, Tallahassee, Florida 32310, in March 1999 when Ms. Petty completed her application for insurance.
4. GOAMERICA subsequently determined that, had it known of Ms. Faison’s residence within Ms. Petty’s household at the time of Ms. Petty’s application for insurance, it would not have issued the policy to Ms. Petty at the same premium rate. Rather, GOAMERICA would have issued the policy to Ms. Petty for a total term premium amount of $441.00, which would have represented an increase from the term premium amount Ms. Petty previously paid for her insurance coverage.
5. Consequently, GOAMERICA declared Ms. Petty’s insurance void ab initio and, in December 2000, issued a Return Premium Check to Ms. Petty, which represented a full refund reimbursement of the policy premiums she had paid over the life of the GOAMERICA policy.
6. Section 627.409, Florida Statutes, provides, in pertinent part, 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.
RULING
7. The evidence clearly establishes, without any issue of material fact, that had GOAMERICA known of Ms. Faison’s residence within Ms. Petty’s household at the time of Ms. Petty’s application for insurance, GOAMERICA would not have issued the policy to Ms. Petty at the same premium rate. Thus, according Section 627.409, GOAMERICA did not err in declaring Ms. Petty’s insurance policy void ab initio, denying coverage thereunder, and returning to Ms. Petty the total of her premium payments. See Simmons v. Conseco Life Insurance Co., 170 F.Supp. 2d 1215 (M.D. Fla. 2001); National Union Fire Ins. Co. of Pittsburgh, PA v. Sahlen, 999 F. 2d 1532 (11th Cir. 1993); Singer v. Nationwide Mutual Fire Insurance Co., 512 So. 2d 1125 (Fla. 4th DCA 1987).
8. Final Summary Judgment is thus GRANTED in favor of the Defendant, NATIONAL INSURANCE ASSOCIATION-A RECIPROCAL d/b/a GOAMERICA AUTO INSURANCE, and the Plaintiff, EPSY PETTY, will take nothing by this action and the Defendant, NATIONAL INSURANCE ASSOCIATION-A RECIPROCAL d/b/a GOAMERICA AUTO INSURANCE shall go hence without day.
9. The Court reserves jurisdiction to award taxable costs.
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