9 Fla. L. Weekly Supp. 626b
Insurance — Personal injury protection — Application — Misrepresentation — Insurer is estopped from asserting affirmative defense that policy was void ab initio based upon alleged material misrepresentation by insured failing to list other household members on application where insurer continued to collect and retained insurance premiums from insured — Further, there is no evidence that any misrepresentation was material where there is no evidence that had insurer known the alleged true facts it would not have issued policy at same rate or in as large an amount, or would not have covered the hazard that resulted in the loss — Affirmative defense stricken with prejudice
SOUTH FLORIDA OPEN MRI, A/A/O MARIA ESCOBAR, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County, Civil Division. Case No. 01-1418 SP 20. July 2, 2002. Fred Seraphin, Judge. Counsel: Brian Tenzer, Richard Patino, P.A., Hialeah, for Plaintiff. Frank Schwartz, Troy Ferguson & Associates, P.A., for Defendant.
ORDER ON PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT
THIS CAUSE came on to be heard on Plaintiff’s Motion for Partial Summary Judgment and the Court being fully advised in the premises, it is hereby
The Court finds as follows:
1. Defendant has asserted the Affirmative Defense that the Plaintiff’s assignor, Maria Escobar, made a material misrepresentation on the policy application by failing to list other household members on the application and, therefore, the insurance policy at issue is void ab initio. Defendant bases this assertion on a recorded statement taken of Maria Escobar sixteen months prior to the date of this hearing.
2. The Defendant, despite the fact it has affirmatively alleged that the policy was void ab initio, continued to collect insurance premiums from Maria Escobar.
3. Based upon equitable principles, once a party accepts the proceeds and benefits of contract, that party is estopped from renouncing the burdens the contract places upon it. Fineberg v. Kline, 542 So.2d 1002 (Fla. 3d DCA 1988).
4. Defendant is now estopped from asserting the Affirmative Defense that the policy is void ab initio based upon an alleged material misrepresentation by Ms. Escobar because it continued to accept and retained the insurance premiums paid by Ms. Escobar.
5. In addition, there is no evidence in the record supporting Defendant’s affirmative defense that Ms. Escobar made a material misrepresentation. There is also no evidence in the record showing that had the Defendant known the alleged true facts at the time the policy was issued, that it would not have issued the policy 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 as required by Florida Statutes 627.409.
6. Based upon the above findings, it is hereby,
ORDERED AND ADJUDGED as follows:
a.) Plaintiff’s Motion for Partial Summary Judgment is hereby GRANTED.
B.) Defendant’s Affirmative Defense that the policy is void ab initio based upon alleged material misrepresentation is stricken with prejudice.
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