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Defense Summary Judgment in PIP Dispute Affirmed

Caryn L. Bellus, Bretton C. Albrecht and Barbara Fox | September 4, 2019

Caryn L. Bellus, Bretton C. Albrecht, and Barbara Fox, of the Miami office, prevailed in obtaining an affirmance of the defense summary judgment entered in favor of a PIP carrier, in a county to circuit appeal, where the carrier defended based on a material misrepresentation defense.

At the trial level, the carrier’s staff counsel won a defense summary judgment holding it was entitled to rescind the policy and deny coverage for the Plaintiff’s medical provider’s PIP claim based on the named insured’s material misrepresentation in failing to disclose her college-age son in the policy application. The accident had occurred while the son was driving one of the insured vehicles just a couple months after the policy was purchased without ever disclosing that he existed.

In the appeal, Plaintiff argued material misrepresentation was a disputed question of fact for a jury, including because there was evidence the insurance agent failed to ask the insured about other household residents and there was no evidence from the insurance agent about what was asked. As to materiality, Plaintiff argued it was unknown whether the son had a drivers’ license at the time of the policy application and further asserted that if the son was unlicensed he could not be considered a ‘driver,’ which the policy did not specifically define. Plaintiff raised several other similar arguments in an attempt to muddle the facts and issues.

In response, Caryn, Barbara, and Bretton emphasized that the insured had testified in deposition that the agent did not ask her ‘anything.’ She also admitted for example that: (a) her son was over the age of 15, (b) he had always lived with her, including at the time of the policy application, (c) she in fact signed the policy application, and (d) she did not disclose her son in the policy application. Her only ‘excuse’ was that the insurance agent allegedly did not ask her “any” of the questions on the application. Notably, however, she did not testify that she had any issues reading or understanding the application or that the agent in any way prevented her from reading the application or misrepresented its contents. At oral argument, Bretton argued that undisputed facts such as these readily distinguish this case from those relied upon by Plaintiff. She further argued and emphasized that the insured had a duty to read the policy application and to ensure the information in it was true and correct before signing. In contrast, the agent had no duty to read the whole policy application to the insured.

With regard to the materiality of the misrepresentation, they explained that subject policy application clearly required disclosure of all household residents age 15 or older, licensed or not. Then there were only two options—they must be listed as either a covered or excluded driver on the policy—and an additional premium would be charged either way.

After oral argument, the appellate panel of the 11th judicial circuit agreed and per curiam affirmed the defense summary judgment. It also granted our motion for appellate attorney’s fees.



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