27 Fla. L. Weekly Supp. 1040a
Online Reference: FLWSUPP 2712GARCInsurance — Personal injury protection — Coverage — Application — Material misrepresentation defense fails where application was ambiguous as to whether insured was required to disclose adult household resident who did not hold driver’s license and had never driven insured vehicle — Ambiguity could not be overcome by assertion that insurance agent explained to insured that she was required to disclose anyone living at the same address 14 years or older
PHYSICIANS GROUP, L.L.C., a/a/o Kayla Garcia, Plaintiff, v. CENTURY-NATIONAL INSURANCE COMPANY, a foreign profit corporation, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2018 SC 006610 NC. January 21, 2020. David L. Denkin, Judge. Counsel: Nicholas A. Chiappetta, Marten | Chiappetta, Lake Worth, for Plaintiff.
ORDER DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT AND GRANTINGPLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing on December 18, 2019 upon Defendant’s Motion for Summary Judgment and Plaintiff’s Cross-Motion for Final Summary Judgment and Response in Opposition to Defendant Motion for Summary Judgment. The Court, having reviewed the motions, the Court file, the case law presented, and having heard arguments of counsel and being otherwise fully advised in the premises, the Court makes the following findings of fact and conclusions of law:
1. The Court was presented with question of whether Kayla Garcia (“Ms. Garcia”), made a material misrepresentation on her insurance policy application by failing to disclose her grandfather, Salustiano Garcia (“Mr. Garcia”). [See D.E. 82].
2. On or about March 21, 2017, Ms. Garcia executed an application for insurance with the Century-National Insurance Company (“Defendant”). In response, the Defendant issued an automobile insurance policy under policy number: PGA060568-01, to Ms. Garcia for a 2008 Chevrolet Malibu, which was effective from September 22, 2017 through March 22, 2018 (the “Policy”).
3. On or about February 09, 2018, while the insurance policy was in full force and effect, Ms. Garcia, was involved in an automobile accident in the State of Florida while operating her insured 2008 Chevrolet Malibu.
4. The Defendant’s insurance application provides:
DRIVER INFORMATION: Names of all drivers in household, all children and all persons that use the vehicles. Coverage is provided only for the drivers listed below.
[Policy Application page 1 of 6][Emphasis added]
5. Beneath this language the application provides a table that includes (in pertinent part) columns with the following titles:
Name of Driver (Exactly as shown on Driver’s License); “License Number”; and “State”
[Policy Application page 1 of 6][Emphasis added]
6. In the table beneath the “DRIVER INFORMATION” section Ms. Garcia only disclosed herself.
7. The Court notes that the application does not provide a section or table that references or requests an applicant to disclose “household member(s)”, “family member(s)” or make any similar distinctions for persons which would not be designated as “children” and that are not “drivers”.
8. The Court also notes that the sentence structure of the application’s DRIVER INFORMATION section reveals that the phrase “all drivers in household”, “children” and “persons” are not separate independent clauses. As drafted, the phrase “all drivers in household”, “children” and “persons” appears to be subject to the phrase “that use the vehicles.” Therefore, it appears that “use of the insured vehicle” is the underlying crux of the question.
9. Following the aforementioned section in the insurance application, there is a section titled “AGREEMENT TO EXCLUDE NAMED PERSONS” which contains the following language:
“In consideration of the premium charged, it is hereby understood and agreed that only Personal Injury Protection Coverage and Property Damage Liability Coverage in the minimum amount necessary to meet the Florida Financial Responsibility requirement, and in the event this policy is certified as proof of financial responsibility in the State of Florida, Bodily Injury Liability Coverage in the minimum amount necessary to meet the Florida Financial Responsibility requirement, shall be afforded when any vehicle covered under the policy or any continuation, renewal or replacement of such policy, is used or operated by an excluded person named below.”
[Policy Application page 5 of 6]
10. Ms. Garcia wrote “N/A” below the “AGREEMENT TO EXCLUDE NAMED PERSONS” section.
11. On the last page of the application, there is a section titled “CERTIFICATION OF APPLICANT”, which asks the applicant to initial next to seven (7) statements. This section does not include an area for the applicant to disclose any additional information; it only allows the applicant to initial next to each statement. [Policy Application page 6 of 6].
12. The third statement from the top in the “CERTIFICATION OF APPLICANT” section reads:
I hereby certify that I have listed all persons in the household and all drivers of the vehicles, whether in my household or not, as well as all children whether living with me or not. I understand that no coverage will be provided for drivers that are not listed on my policy whether they are in the household now or enter it later. I understand it is my responsibility to make the Company aware of any changes in drivers, vehicles or coverages. I certify that the garaging address listed is the actual address where my vehicle(s) are garaged the majority of the time and I am aware that any change in the mailing or garaging address of any vehicle must be reported to the Company immediately. [Emphasis added, in part].
13. Ms. Garcia placed her initials next to all of the seven (7) statements in the “CERTIFICATION OF APPLICANT” section of the policy application, including the one described above.
14. At the time the insurance application was completed, Ms. Garcia resided with her grandfather, Mr. Garcia.
15. Based upon the evidence presented it is undisputed that Mr. Garcia does not currently have, nor has he had, a driver’s license since 2013; and he has never driven the insured vehicle.
16. On or about February 09, 2018, Ms. Garcia was involved in an automobile accident in the State of Florida. As a result of the injuries sustained in the February 09, 2018 motor vehicle accident, Ms. Garcia sought medical treatment from the Plaintiff. The Plaintiff is the assignee of Personal Injury Protection (“PIP”) Insurance benefits, which were assigned by Ms. Garcia in exchange for the medical treatment provided by Plaintiff. Ms. Garcia sought and received medical treatment for the injuries sustained in the February 09, 2018 motor vehicle accident from Plaintiff.
17. The Plaintiff timely submitted its medical bills for Ms. Garcia for dates of service: February 13, 2018 through March 19, 2018. The Defendant timely received and authenticated Plaintiff’s medical bills from February 23, 2018 through April 02, 2018. The Defendant denied those bills alleging that Ms. Garcia committed a material misrepresentation by failing to disclose Mr. Garcia as a household member on her policy application; and unilaterally attempted to rescind the Policy on or about May 03, 2018.
18. On November 06, 2018, the Plaintiff brought this suit against the Defendant for its failure to pay PIP benefits. As its sole affirmative defense, the Defendant alleged that Ms. Garcia committed a material misrepresentation on the insurance application by not disclosing Mr. Garcia.
19. The Defendant moved for summary judgment based on its material misrepresentation affirmative defense. In support of its motion, the Defendant filed an affidavit from insurance agent Martina Skipper. The affidavit set forth in pertinent part:
It is my custom and normal business practice to ask all insurance applicants about all household members 14 years and older . . . I asked Kayla Garcia to disclose anyone living in the same address 14 years and older, and Kayla Garcia did not disclose Salustiano Garcia . . . Kayla Garcia did not disclose any other household members and certified that she listed all persons in her household and all drivers of the vehicles, whether in her household or not, as well as all children, whether living with her or not . . . Had Kayla Garcia disclosed Salustiano Garcia . . . as a household member, then I would have excluded them as drivers on the application for insurance.
20. The Plaintiff filed a cross-motion for final summary judgment and response in opposition to Defendant’s summary judgment motion, arguing that the insurance application did not require the disclosure of Mr. Garcia because he does not have a driver’s license and has never driven the insured vehicle. The Plaintiff argued that the insurance application is inconsistent, in conflict and ambiguous in context. The Plaintiff also presented to the Court, Judge Miranda’s opinion in Ocean Ridge Chiropractic, Inc. a/a/o Bertrand Acelouis v. Century-National Insurance Company, 27 Fla. L. Weekly Supp. 753a (Broward Cty. Ct. August 7, 2019) which is factually similar to the case at hand.
21. Florida law requires that a contract be interpreted against the drafter when the contract contains ambiguous terms. See Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 942 (Fla.1979). Any ambiguity, inconsistency, or conflict is construed in favor of the insured. See U.S. Fidelity & Guaranty Co., v. Rood Investments, Inc., 410 So.2d 1373, 1374 (Fla. 5th DCA 1982). “Policy language is considered to be ambiguous . . . if the language is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage.” Washington Nat. Ins. Corp. v. Ruderman, 117 So. 3d 943, 948 (Fla. 2013) [38 Fla. L. Weekly S511a] (quoting State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566, 570 (Fla. 2011) [36 Fla. L. Weekly S469a]).
22. The Court’s agrees with the rational of Judge Miranda’s opinion in Ocean Ridge Chiropractic, Inc. a/a/o Bertrand Acelouis v. Century-National Insurance Company, 27 Fla. L. Weekly Supp. 753a (Broward Cty. Ct. August 7, 2019).
23. The Court finds that under the facts of this case and evidence presented, the application for insurance is ambiguous, as a matter of law. If the Defendant intended to require disclosure of such individuals from applicants on the application, it was incumbent upon the Defendant to choose language that clearly and unambiguously communicated that intention. The Court agrees that “use of the insured vehicle” is the underlying crux of the question in the “DRIVER INFORMATION” section. As such, the “DRIVER INFORMATION” section of the application is reasonably interpreted as only requiring disclosure of licensed individuals who, in fact, drive the insured vehicle.
24. Courts should not attempt to resolve a contractual ambiguity by examining extrinsic evidence. See Ruderman, 117 So. 3d at 945. Therefore, the Court agrees with Judge Miranda, and finds that insurance agent, Martina Skipper’s assertion in her affidavit, that she “explained” the ambiguous provision of the application to the applicant fails as a matter of law. An ambiguity cannot be overcome by such assertion.
25. Lastly, the Defendant argued that under Redland Ins. Co. v. CEM Site Constructors, Inc., 86 So. 3d 1259, 1261 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1115a], summary judgment was improper. The Court disagrees. Summary judgment is appropriate where “the state of the evidence is such that the nonmoving party will not be able to prevail at trial as a matter of law.” Land Dev. Servs., Inc. v. Gulf View Townhomes, LLC, 75 So.3d 865, 868 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2764c].
26. In Redland, the court distinguished Great Oaks, based upon disputed issues of facts surrounding the circumstances of McLeod III’s driving and employment, when he completed the application, and what effects, if any, was there prior dealings between the parties on the understanding of the terms of the application. In the case at hand, there is no record evidence of any disputed issues of fact as it pertains to Mr. Garcia or Ms. Garcia. Therefore, summary judgment is appropriate.
Accordingly, it is hereupon ORDERED and ADJUDGED, as follows:
1. The Defendant’s Motion for Summary Judgment is DENIED.
2. The Plaintiff Cross-Motion for Final Summary Judgment is GRANTED.
3. The parties are directed to submit a proposed final judgment within thirty (30) days.