Volume 14

14 Fla. L. Weekly Supp. 855a

Insurance — Homeowners — Appraisal award — Confirmation — Denial — Where parties opted to use voluntary appraisal process established in insurance policy to resolve dispute as to amount of loss, appraisals were conducted, and amount of loss was set and paid, there is no need or legal basis for court to grant motion to confirm appraisal award

14 Fla. L. Weekly Supp. 317a

Insurance — Personal injury protection — Application — Misrepresentations — Insurer that failed to return premiums to insured in timely manner waived right to raise material misrepresentation defense

14 Fla. L. Weekly Supp. 138a

Insurance — Personal injury protection — Application — -Misrepresentations — Error to enter summary judgment in favor of insured where insurer’s defenses raised disputed issues of fact as to whether insured made misrepresentations or false statements on application or knew of false statements yet allowed them to be made, whether false statements would have affected coverage or amount of premium, whether misrepresentation is legally material to loss, and whether insurer waived right to rescind policy by not reimbursing premium

14 Fla. L. Weekly Supp. 98b

Insurance — Personal injury protection — Material misrepresentation on application — Signature on non-business use statement — Insured did not, as matter of law, drive her vehicle for business use, delivery, or for a commercial purpose where she worked as nurse’s assistant who traveled to her patients’ residences to care for them, but did not transport patients in her vehicle

14 Fla. L. Weekly Supp. 16a

Insurance — Personal injury protection — Application — Misrepresentation — Error to find that insurer’s only remedy for material misrepresentation on application for PIP policy was prospective cancellation because retroactive right to rescission of PIP policy under section 627.409 was abrogated by passing of Florida Automobile Reparations Act, which mandated certain types of no fault insurance coverage for all drivers — Precedent case law construes section 627.409 as applying to PIP policies, and there is absence of express legislative intent in Act abrogating remedy of rescission — However, judgment in favor of insured is affirmed — Failure to disclose licensed family member on application was not material misrepresentation because insurer would still have issued policy, albeit at higher premium, if additional driver had been disclosed, and claim does not relate to undisclosed driverWITHDRAWN at14 Fla. L. Weekly Supp. 360b

14 Fla. L. Weekly Supp. 1018b

Insurance — Personal injury protection — Application — Misrepresentations — Failure to disclose licensed driver of household over age 14 — Rescission — Where insured failed to disclose that nephew resided in household, and misrepresentation altered premium, insurer could rescind policy as defense based on material misrepresentation — Waiver — Error to enter final summary judgment based on finding that insurer waived right of rescission by waiting unreasonable time, 14 months after examination under oath, to cancel policy where there is no evidence in record that insurer continued to bill or accept payment from insured after learning of material misrepresentation — Moreover, material issues of fact exist as to when insured was notified of policy’s rescission and whether misrepresentation regarding nephew. who lived with insured for a year and half but who was not residing with insured at time of application or at time of EUO. was material

14 Fla. L. Weekly Supp. 360b

Insurance — Personal injury protection — Application — Misrepresentation — Error to find that insurer’s only remedy for material misrepresentation on application for PIP policy was prospective cancellation because retroactive right to rescission of PIP policy under section 627.409 was abrogated by passing of Florida Automobile Reparations Act, which mandated certain types of no fault insurance coverage for all drivers — Precedent case law construes section 627.409 as applying to PIP policies, and there is absence of express legislative intent to abrogate remedy of rescission — However, judgment in favor of insured is affirmed — Although premium charge for failure to list additional driver may constitute material misrepresentation, where failure to disclose additional driver was only misrepresentation made, insurer would still have issued policy at minimally higher premium if additional driver had been disclosed, claim does not relate to undisclosed driver, and there was seven-month delay in returning premium after discovery of misrepresentation, failure to disclose is not material so as to void coverage

14 Fla. L. Weekly Supp. 189b

Insurance — Personal injury protection — Application — Misrepresentations — Where insurer did not refund premium, insurer had ability to investigate application for defects at any time after application was completed but chose not to do so, and insurer failed to disclose or allege misrepresentation defense until after claim had already been denied defeats, partial summary judgment on material misrepresentation defense is granted in favor of medical provider — Insurer’s responses to interrogatories cannot be considered in opposition to motion for summary judgment where responses were never filed with court or identified as summary judgment evidence

14 Fla. L. Weekly Supp. 134a

Insurance — Personal injury protection — Application — Misrepre-sentations — Error to grant summary judgment in favor of insurer on affirmative defense of material misrepresentation by listing as unlicensed a spouse who had restricted driver’s license where policy’s failure to define “driver’s license” created issue of material fact as to interpretation of term — Although trial court denied motion to amend original answer and affirmative defenses, which asserted defense of misrepresentation by failure to list all household residents, to assert misrepresentation by failure to disclose spouse’s licensure, because denial of motion to amend was without prejudice, court was within its right to reconsider and allow amended affirmative defense in considering motion for summary judgment

14 Fla. L. Weekly Supp. 570a

Insurance — Personal injury protection — Application — Material misrepresentations — Insurer’s remedy of rescission for material misrepresentation in application for PIP policy is irreconcilable with mandatory requirements of No-Fault Law and was abolished thereby — Insurer cannot avoid liability on ground that policy did not exist at time of loss because it was cancelled ab initio due to insured’s failure to list son with restricted license as member of household — Question certified whether cancellation of no fault insurance policy can be effective ab initiio in light of mandatory requirements imposed by Florida No Fault Law