Volume 13

13 Fla. L. Weekly Supp. 1221a

Insurance — Personal injury protection — Application — Material misrepresentations — Where insurer denied coverage for claimant who was injured while driving insured’s vehicle based on insured’s failure to disclose in insurance application that claimant resided with insured, insurer did not waive right to deny coverage to claimant by failing to return premium to insured because materially false statement or omission resulted in denial of coverage only for risk never assumed by insurer or paid for by insured, not entirety of coverage

13 Fla. L. Weekly Supp. 1214b

Insurance — Personal injury protection — Application — Misrepresentations — Court finds application was filled out properly and there is no evidence of material misrepresentation by failure to list household members based on insured’s affidavit, which states that insured was the only driver and that insured’s mother, father and brother resided in separate household

13 Fla. L. Weekly Supp. 1211a

Insurance — Personal injury protection — Application — Misrepresentations — Partial summary judgment is granted in favor of medical provider on issue of material misrepresentation by failure to list all household residents where only evidence on issue is affidavit of insured, which cannot be considered because it is unsworn

13 Fla. L. Weekly Supp. 552a

Insurance — Personal injury protection — Rescission of policy — Misrepresentations — Waiver — No error in concluding that insurer could not use defense of material misrepresentation to rescind PIP policy because it had waived defense where insurer had not returned paid premiums by date of summary judgment hearing

13 Fla. L. Weekly Supp. 611a

Insurance — Personal injury protection — Action seeking declaratory decree that treatment was reasonable, related and necessary and that insurer’s common law right to unilaterally rescind PIP coverage for material misrepresentation has been abrogated by statutes — Insurer’s affirmative defense alleging that medical provider failed to state cause of action for declaratory decree that treatment was reasonable, related and necessary is stricken — Declaratory judgment action is appropriate to resolve questions of fact upon which rights and obligations under insurance policy depend — Misrepresentations — Rescission of policy — There is no need for declaratory relief on whether statutes are in derogation of common law right of rescission where insurer elected to ratify validity of policy by not rescinding policy after learning of possible material misrepresentation

13 Fla. L. Weekly Supp. 94a

Insurance — Personal injury protection — Application — Misrepresentations — Common law rescission of PIP policy for material misrepresentation is preempted by PIP statute where common law rescission allowing retroactive cancellation is irreconcilable with statutory scheme requiring driver to maintain PIP coverage continuously, providing for notice in advance of cancellation of coverage to afford insured the opportunity to procure other insurance to avoid lapse in coverage, and providing penalties for failure to maintain coverage — Further, to allow insurer to retain right of rescission and postpone investigation of insured’s insurability until claim is made defeats purpose of Florida Financial Responsibility Law to protect public — Cancellation for material misrepresentation must be prospective — Summary judgment granted in favor of medical providerAFFIRMED at14 Fla. L. Weekly Supp. 360b

13 Fla. L. Weekly Supp. 273a

Insurance — Personal injury protection — Rescission of policy — Misrepresentations on application — Omission of name of teenage son who was resident of household — Insurer could not assert, as defense to coverage, that it had rescinded policy based on material misrepresentation in insured’s application without returning premiums to insured — Insurer did not effectively rescind policy where it returned premiums to premium finance company — Moreover, insurer’s common law right to unilaterally rescind PIP coverage is preempted by Florida’s compulsory motor vehicle insurance statutes — Insurer’s notice of cancellation was not compliant with applicable statutes because date of cancellation on notice was the effective date of the policy — Section 627.409, which permits a defense for material misrepresentation if the misrepresentation alters the premium, is a remedial statute in derogation of common law enacted to remedy unconscionable practice of insurers at common law of rescinding policies for immaterial technicalities — Pursuant to this statute, material misrepresentation renders a policy voidable, not void — Assuming for the sake of argument that section 627.409 is a rescission statute, it is unenforceable in this case because it conflicts with subsequently enacted statutes which permit only a prospective abrogation of PIP coverage — Court’s interpretation of statute does not lead to absurd result — Insurer, by its own admissions would have insured the risk, albeit at higher premium, even if it knew about the unlisted household member; loss suffered by insured was the risk insurer agreed to assume in the first place; and insurer could have discovered the unlisted household member by routine investigation when policy was underwritten rather than relying upon its practice of post-claims underwriting — Moreover, insured in this case did not procure policy by fraud

13 Fla. L. Weekly Supp. 500a

Insurance — Personal injury protection — Misrepresentation — Rescission of policy — Insurer’s common law right to rescind PIP coverage is abrogated by statute — Notice of cancellation for material misrepresentation on policy application was defective and did not comply with statute where effective date of cancellation was the policy inception date — Insurer is statutorily required to report cancellation or non-renewal of PIP coverage to Department of Highway Safety and Motor Vehicles within 45 days from effective date of cancellation or non-renewal — Insurer is liable on policy for reasonable, related and necessary medical expenses

13 Fla. L. Weekly Supp. 880a

Insurance — Automobile — Application — Misrepresentations — Where person who processed high risk automobile insurance application on which insured made material misrepresentation that she was gainfully employed and bound policy was an independent broker acting on behalf of insured, not insurance agent acting on behalf of insurer, insurer is entitled to final summary judgment

13 Fla. L. Weekly Supp. 595b

Insurance — Automobile — Rescission of policy — Complaint alleging that insurer failed to pay interest for time it held on to premiums for policy which was subsequently rescinded due to alleged material misrepresentation and that insurer failed to refund two policy fees states cause of action — Court declines to determine on motion to dismiss whether or not case should be class action