13 Fla. L. Weekly Supp. 1223b
Insurance — Personal injury protection — Application — Material misrepresentations — Waiver — Where insurer failed to return premium to insured upon learning of alleged material misrepresentation, insurer waived right to deny coverage based on misrepresentation
WINONA DOYER, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-2005-CC016279XXXXSB. September 13, 2006. Debra Moses Stephens, Judge. Counsel: Steven N. Ainbinder, Law Offices of Steven N. Ainbinder, P.A., Boca Raton, for Plaintiff. Dena Sisk Foman, Vernis and Bowling of Palm Beach, P.A., North Palm Beach.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
The above captioned case came on to be heard by the Court, pursuant to the Motion of the Plaintiff, WINONA DOYER, for Partial Summary Judgment as to Defendant’s, PROGRESSIVE AMERICAN INSURANCE COMPANY, Seventh (7th) Affirmative Defense to Plaintiff’s Complaint for Personal Injury Protection Benefits. The Court, having heard argument by counsel for the respective parties involved herein, having considered the statutory and case law, the various memoranda of law submitted by the parties, and having examined the record evidence, finds that, based upon the authority of Martinez v. General Insurance Company, 483 So.2d 892 (Fla. 3rd DCA, 1986), there is no material issue of fact precluding the entry of a partial Summary Judgment in favor of the Plaintiff, WINONA DOYER, as to Defendant’s, PROGRESSIVE AMERICAN INSURANCE COMPANY, Seventh (7th) Affirmative Defense to Plaintiff’s Complaint for Personal Injury Protection Benefits. The Court finds that:
1. This lawsuit stems from the nonpayment of certain Personal Injury Protection (P.I.P.), medical benefits, submitted to the Defendant by the Plaintiff, as a result of a motor vehicle collision which occurred on June 16, 2005. The Plaintiff, while a passenger in an automobile being driven by Alyx Gomez, was involved in a motor vehicle collision. As a result of said motor vehicle collision, the Plaintiff, WINONA DOYER, received medical treatment for injuries she sustained in said collision and submitted same for payment with the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY.
2. The Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, through an insurance policy purchased by the Plaintiff, WINONA DOYER, provided personal injury protection insurance coverage to Ms. Doyer, subject to the terms, conditions, endorsements and/or exclusions of said policy, which was in full force and effect when the motor vehicle collision in which WINONA DOYER was involved occurred.
3. During its investigation, the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, denied coverage for the above referenced claim, pursuant to Section 627.409, Florida Statutes, due to an alleged material misrepresentation in the insurance application of the Plaintiff, WINONA DOYER. Specifically, the Defendant contends that the Plaintiff, WINONA DOYER, failed to disclose that Alyx Gomez resided with her, at the time she executed an insurance application with said Defendant. The Defendant has alleged that had it known of this alleged fact, it would not have issued the insurance policy at the same premium rate.
4. The Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, in an affidavit, testified that had PROGRESSIVE known that Mr. Gomez resided with the Plaintiff, WINONA DOYER, at the time she completed her insurance application, Plaintiff’s insurance premium would have increased thirty-nine (39%) percent.
5. Section 627.409, Florida Statutes, states, (in relevant part) that all statements in any application for an insurance policy shall be deemed to be representations and warranties. Misrepresentations, omissions, concealment of facts and incorrect statements shall not prevent a recovery under the policy, unless the insurer in good faith, would not have issued said policy at the same premium rate.
6. In, Martinez v. General Insurance Company, 483 So.2d 892, (Fla. 3rd DCA, 1986), the Third District of Court of Appeals adopted, Dairyland Insurance Company v. Kammerer, 317 N.W.2d 618 (1982), which held that, when learning of the alleged [material misrepresentation in an insurance application], the insurer has two choices. Either it could, because of the alleged fraudulent statements made to it, cancel the policy from its inception and return to the insured the entire premium, on the theory that the policy never came into existence, or it could waive the alleged [material misrepresentation], keep the premium earned and accept responsibility under the policy.
7. The evidence is unrefuted that the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, failed to return the insurance premium to the Plaintiff, WINONA DOYER. Therefore, the Defendant, pursuant to Martinez v. General Insurance Company, has waived its right to deny coverage in this case, pursuant to Section 627.409, Florida Statutes.
The Court being otherwise fully advised in the premises, it is therefore,
ORDERED AND ADJUDGED that:
1. Based upon the arguments set forth in Plaintiff’s Motion for Partial Summary Judgment and Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Motion for [Partial] Summary Judgment, the motion of the Plaintiff, WINONA DOYER, for Partial Summary Judgment as to Defendant’s, PROGRESSIVE AMERICAN INSURANCE COMPANY, Seventh (7th) Affirmative Defense to Plaintiff’s Complaint for Personal Injury Protection Benefits, is hereby granted.
2. Partial Summary Judgment is hereby entered in favor of the Plaintiff, WINONA DOYER, which precludes the Defendant’s, PROGRESSIVE AMERICAN INSURANCE COMPANY, from presenting any evidence that a material misrepresentation existed in the Plaintiff’s insurance application, due to their failure to return the insurance premium to the Plaintiff, WINONA DOYER, pursuant to Martinez v. General Insurance Company, 483 So.2d 892, (Fla. 3rd DCA, 1986).
3. Partial Summary Judgment is entered against Defendant’s Seventh Affirmative Defenses set forth in Defendant’s First Amended Answer.
4. All other affirmative defenses being asserted by the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, are not affected by the entry of this Order.
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