Volume 25

25 Fla. L. Weekly Supp. 499a

Online Reference: FLWSUPP 2506PARKInsurance — Automobile — Property damage — Appraisal — Trial court erred by granting summary judgment in favor of insurer in action filed by assignee repair shop after insurer failed to pay full amount of repair shop’s estimate — Although insurer asserted that neither insured nor repair shop participated in appraisal as requested by insurer, genuine issue of material fact existed as to whether insurer elected to repair the vehicle and thereby waived appraisal — Language in insurer’s supplemental estimate requiring pre-approval for repairs did not bind repair shop because this language was not contained in the policy itself — Further, issues of material fact remained as to scope of repairs required to restore insured’s vehicle to pre-loss condition

25 Fla. L. Weekly Supp. 294a

Online Reference: FLWSUPP 2503DRANInsurance — Automobile — Appraisal — Motion to dismiss and/or abate and motion for protective order invoking appraisal provision of policy are denied — Appraisal is not appropriate where insured seeks to invalidate limits of liability provisions of policy and where damaged parts can be repaired or replaced — Where insured contends that insurer’s selected appraiser is not disinterested, as is required by policy, court will allow discovery on that issue

25 Fla. L. Weekly Supp. 293a

Online Reference: FLWSUPP 2503GARIInsurance — Automobile — Appraisal — Motion to dismiss and/or abate and motion for protective order invoking appraisal provision of policy are denied — Appraisal is not appropriate where insured seeks to invalidate limits of liability provisions of policy and where damaged parts can be repaired or replaced

25 Fla. L. Weekly Supp. 823a

Online Reference: FLWSUPP 2509EGARInsurance — Personal injury protection — Application — Misrepresentations — Materiality — Insured’s failure to disclose household resident age 15 or older on application despite being asked three times to disclose all such residents constitutes material misrepresentation where there is no evidence that insurer was aware of unlisted resident, and affidavit of insurer’s underwriter avers that policy would have been issued at higher premium or would not have been issued at all if insured had disclosed resident on application — Where insured did not allege in reply to insurer’s answer and affirmative defenses that insurer had waived right to rescind policy but raised waiver issue for first time in motion for summary judgment, waiver issue was not properly pled and will not be considered

25 Fla. L. Weekly Supp. 638b

Online Reference: FLWSUPP 2507SBROInsurance — Personal injury protection — Coverage — Medical expenses — Affidavits offered by insurer in support of its defense that policy was void because insurer made material misrepresentations on application when she failed to list all household members over age 15 were insufficient to create genuine issue of material fact — Affidavit submitted three days prior to hearing on provider’s motion for summary judgment was untimely and cannot be considered — Further, affidavit contained nothing more than unsubstantiated factual conclusions, was not based on personal knowledge, and did not affirmatively show that affiant was competent to testify to matters stated in affidavit — Second affidavit is inadmissible as summary judgment evidence because it was based solely on unsworn recorded statements — Motion for summary judgment granted

25 Fla. L. Weekly Supp. 180a

Online Reference: FLWSUPP 2502AUGUInsurance — Personal injury protection — Application — Misrepresentations — Where PIP policy is ambiguous as to whether resident relatives 15 years of age or older are only required to be disclosed if they are regular drivers of insured vehicles, and ambiguity is heightened by headings of column for entry of information that designate each entry as “Drv. #” and request details of licensure for each driver, ambiguity is resolved in favor of insured to afford coverage to two unlicensed daughters over age 15 that were not disclosed on application and were injured as passengers in vehicle accident

25 Fla. L. Weekly Supp. 193a

Online Reference: FLWSUPP 2502AVILInsurance — Summary judgment granted in favor of provider in action in which insurer’s sole affirmative defense was alleged material misrepresentation that named insured failed to list household member on application — Evidence reflected that defendant’s agent had constructive knowledge of the undisclosed household member

25 Fla. L. Weekly Supp. 827a

Online Reference: FLWSUPP 2509LEONInsurance — Declaratory judgments — Jurisdiction — County court has subject matter jurisdiction of declaratory action seeking determination as to whether insurer committed material misrepresentation on insurance application despite fact that combined coverages sought by insured exceed county court’s jurisdictional limit

25 Fla. L. Weekly Supp. 502a

Online Reference: FLWSUPP 2507GARAInsurance — Personal injury protection — Application — Misrepresentations — Evidence — Examination under oath is admissible under exception to hearsay rule applicable to admission by party, and trial court erred by holding EUO transcript was inadmissible and improper summary judgment evidence — Policy was properly rescinded, and therefore void ab initio, based on insured’s material misrepresentation on policy application

25 Fla. L. Weekly Supp. 982a

Online Reference: FLWSUPP 2511REYEInsurance — Automobile — Coverage — Application — Material misrepresentation — Opposing affidavit filed by insurer does not preclude summary judgment in favor of insurer seeking declaration of property damage coverage under automobile insurance policy where affiant’s assertions pertaining to alleged higher premium that would have been charged had insured disclosed on application that two children over age 15 reside in her home is based on hearsay of unknown declarant in insurer’s underwriting department and not based on affiant’s personal knowledge