9 Fla. L. Weekly Supp. 15a
Insurance — Automobile — Error to enter summary judgment in favor of insurer on ground that insured made material misrepresentation on policy application by failing to list name of brother over age 15 living with him — Question on application under heading “Drivers Information” asking insured to list all persons who have reached the age of 15 and reside with insured was ambiguous in that it was equivocal
JOSE GALLARDO, Appellant, vs. EXECUTIVE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 01-040 AP. Lower Court Case No. 00-12501 CC 05. Opinion filed November 6, 2001. An appeal from the County Court, Catherine M. Pooler, Judge, in and for Miami-Dade County Florida. Counsel: Virginia M. Best, for Appellant. Brian P. Knight, for Appellee.
(Before JUDITH KREEGER, ROBERTO PINIERO, LAWRENCE A. SCHWARTZ, JJ.)
(SCHWARTZ, J.) In December of 1997, the appellant, Jose Gallardo (“Gallardo”), insured his car under a policy provided by the appellee, Executive Insurance Company (“Executive”). The application asked Gallardo for the following information:
DRIVERS INFORMATION (List all operators of the vehicles listed above and all persons whom [sic] have reached the age of 15 and resided with the Named Insured.)
Appearing under this information was a box with lines, requesting, inter alia, the names, dates of birth, license numbers and license restrictions of the relevant individuals. Gallardo answered this question by only listing himself, despite the fact that he lived with his mother and brother, both of whom were over fifteen.
On August 6,1998, Gallardo’s car was damaged in an accident while being driven by his friend, Leonardo Ortiz. Gallardo submitted a claim to Executive. However, after Executive’s investigation, the claim was denied based on Gallardo’s failure to list his brother under the “DRIVERS INFORMATION” section of the application.
Gallardo filed suit. Executive argued that Gallardo’s failure to include his brother on the application constituted a material misrepresentation which voided the policy ab initio pursuant to §627.409(1), Florida Statutes.1 In arguing that coverage should nevertheless bind, Gallardo argued that he did not list his brother on the application because he reasonably thought that the question did not call for his listing. Gallardo argued that he thought that, since his brother would not be driving his car, he did not have to list him under this category which sought “DRIVERS INFORMATION.” Thus, Gallardo argued that the question was ambiguously worded.
In arguing that the question was not ambiguous, Executive moved for a summary judgment. The court granted it. This appeal ensues.
We agree with Gallardo and reverse and remand with proceedings consistent herewith.
It is well-settled that interpretation of insurance contracts, including determination and resolution of any ambiguities, is a matter of law to be decided by the court. See Sandron Corp. v. Utica Mut. Ins. Co., 360 So. 2d 477 (Fla. 3d DCA 1978); Gaulden v. Arkwright-Boston Mfrs. Mut. Ins. Co., 358 So. 2d 267 (Fla. 3d DCA 1978); United Services Auto. Ass’n v. Porras, 214 So. 2d 749 (Fla. 3d DCA 1968) (Trial judge my resolve ambiguity in insurance policy as a matter of law.). Further, an ambiguity in an insurance contract arises when more than one interpretation may fairly be given to a policy provision. See Gillmore v. St. Paul Fire and Marine Ins., 708 So. 2d 679 (Fla. 1st DCA 1998); State Farm Fire and Cas. Co. v. Metropolitan Dade County, 636 So. 2d 63 (Fla. 3d DCA 1994) rev. denied 639 So. 2d 234; Ellsworth v. Insurance Co. North America, 508 So. 2d 395 (Fla. 1st DCA 1987).
We find that the trial court erred as a matter of law when it found that the insurance contract was unambiguous and granted summary judgment to Executive. We agree with Gallardo in finding that the question was ambiguous in that it was equivocal. See Travelers Ins. Co. v. Bartoszewicz, 404 So. 2d 1053, 1054(Fla. 1981) (“Equivocality arises only when the terms of a contract present a genuine inconsistency, uncertainty, or ambiguity.”). The “DRIVERS INFORMATION” question appears to ask two different questions under this one heading: it seeks information about drivers (Gallardo) and non-drivers (Gallardo’s brother). We find that Gallardo was reasonable in his thinking when he thought that he did not have to list his brother even though his brother was over fifteen and resided with him. If the capitalized heading of the question sought information about those who would be driving the car, we do not see why Gallardo should have listed his brother when his brother was not going to. Indeed, the fact that this question goes on to ask driver license information (i.e., numbers, restrictions, etc.) only serves to make Gallardo’s interpretation more reasonable.
As below, Executive argues that the policy question is not ambiguous in that the information contained in the parentheses is clear that it seeks driver information and information about those who are over fifteen and residing with the insured regardless of whether they will drive the car. We agree that this is a reasonable interpretation of the language; however, this is not the only reasonable interpretation given the capitalized heading. If Executive wanted to know — as apparently it did — information about drivers(s) of the insured vehicle in addition to or separate and distinct from information about those non-drivers over the age of fifteen living in the same household, it could have asked these questions separately in the application rather than under one general heading entitled: DRIVER INFORMATION.
As we find that the application was ambiguous in that it was equivocal, we construe the ambiguity (equivocality) in favor of the insured, Gallardo. Bartoszewicz, 404So. 2d at 1054 (“This rule is applied to insurance contracts as well, and, because it is more often the insurer who draws the contract, the general rule is that ambiguities (equivocalities) are read against the insurer.”). Hence, we reverse the granting of summary judgment, finding that Gallardo, in failing to include his brother under this section, did not commit a material misrepresentation entitling Executive to void coverage under §627.409(1), Florida Statutes. Reversed and Remanded. (KREEGER and PINIERO, JJ., concur.)
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1In pertinent part:
(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 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.
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