County Civil Court: INSURANCE –
summary judgment – whether there has been a misrepresentation, omission,
concealment of fact, or incorrect statement by an insured must be determined by
the trier of fact – ambiguity of the policy language precluded the entry of
summary judgment – Final Summary Judgment reversed. Mapes
v. Permanent General Assurance Co., Appeal No. 04-0055AP-88B (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
RONALD W. MAPES,
Appellant,
Appeal
No. 04-0055AP-88B
Vs. UCN522004AP000055XXXXCV
PERMANENT GENERAL
ASSURANCE
CORPORATION,
Appellee.
______________________________/
Appeal from Final Summary Judgment
Judge William B. Blackwood
Judge Myra Scott McNary
James J. Dowling, Esquire
Attorney for Appellant
Joseph T. Metzger, Esquire
Kari A. Metzger, Esquire
Attorneys for Appellee
ORDER AND OPINION
THIS CAUSE came before the Court on appeal filed by Ronald W. Mapes (referred to herein as “Appellant” or “Mapes”), from the Order for Final Summary Judgment, entered July 20, 2004, in favor of Permanent General Assurance Corporation (referred to herein as “Appellee” or “Permanent General”). Upon review of the briefs and the record and being otherwise fully advised, the Court reverses the judgment for the reasons set forth herein.
According
to the record, Mapes’ daughter, Mary Mapes, was involved in an auto accident on
The alleged intentional misrepresentations or omissions stem from a question on that application. The application directed Mapes to “[l]ist all persons 15 and older, licensed or not, who reside in the household or anyone else who regularly drives any of the vehicles.” Mapes did not list anyone in response to that inquiry. The application also asked, “[a]re there any children under the age of 15 in the household.” Mapes answered “no.” Finally, the application required that Mapes acknowledge by his signature that “failing to notify the Company of any member of my household age 15 or older … may render my policy null and void” and certified that “all persons age 15 or older who live with me have been reported to the Company.”
At all times material hereto Mapes was the father to Mary Mapes, who was involved in the subject accident, and Nicholas Mapes. Both children were over the age of 15. Permanent General based its rejection of the claim on Mapes’s failure to identify those children in response to the aforementioned portion of the application.
Mapes filed an action against Permanent General for breach of contract and declaratory relief to recover under the policy. Subsequently, Mapes amended to allege a claim that Permanent General was estopped from denying coverage under the policy by ambiguity in the portion of the application previously described.
After answering the complaint and raising several affirmative defenses, Permanent General, moved for summary judgment. The grounds for the motion were that the record conclusively established that Mapes had made material misrepresentations regarding his two children’s residential status. The trial judge agreed. Mapes now calls upon this court to review and reverse this decision.
Two
very important principles control this review. First, this court must review
the matter de novo. Major League Baseball v. Morsani, 790
So.2d 1071 (
Permanent
General correctly cites to §627.409(1),
Any statement or description made by or on behalf of an insured or annuitant in an application for an insurance policy or annuity contract, or in negotiations for a policy or contract, is a representation, omission, concealment of fact, or incorrect statement may prevent recovery under the contract or policy only if any of the following apply:
(a) The misrepresentation, omission, concealment, or statement is fraudulent
or is material either to the acceptance of the risk or to the hazard assumed by the insurer.
Thus, the trial court’s order can only stand if the record conclusively establishes two things. First, that Mapes made a misrepresentation or omission, concealment of fact, or incorrect statement. Second, that such representations or conduct is material to either the acceptance of the risk or the hazard assumed by the insurer.
Consider first whether the record conclusively establishes that Mapes made a misrepresentation, omission, concealment of fact or incorrect statement. The insurer’s application called upon Mr. Mapes to identify all those over 15 “who reside in the household or who regularly drive any of the vehicles.” Mapes’s failure to list either of his children must be considered in context. He does tell the insurer in the same application that he has no “children under the age of 15 in the household.” By signing the application Mapes also certifies that he has reported all those over 15 “who live” with him to the company.
Thus, whether
there has been a misrepresentation, omission, concealment of fact, or incorrect
statement depends entirely on what the combination of words chosen by Permanent
General means. Those words include “reside,” “household,” “regularly drives,”
and “live with me.” Based on an examination of this record this court finds
that at the very best from Permanent General’s standpoint the words,
individually, and considered in context, have two reasonable meanings – one of
which is inconsistent with the argument that Mapes made a misrepresentation,
omission, concealment of fact, or incorrect statement. The result must be
decided by the trier of fact. CEM
Enterprises, Inc. v. State of
Such
representations in applications involve matter of intent and they typically
must be decided by the trier of fact.
Thus, the
ambiguity of the verbiage and the intent of the parties at the very best from
the standpoint of Permanent General leave a doubt as to who should prevail and
must be resolved by the fact finder. At the very worst, the ambiguity must be
resolved against Permanent General. See e.g. Progressive Insurance Co. v. Estate of Wesley, 702 So.2d 513 (
The foregoing
discussion relates solely to the nature of the involved words. It does not
relate to the equally critical element of whether any alleged representations
were “material either to the acceptance of the risk or to the hazard assumed by
the insurer.” §627.409(1),
As Mapes suggests, there is no affidavit or anything else in the record conclusively establishing these facts without a doubt. Appellee suggests essentially, “well everyone knows that these sorts of things are material.” Unfortunately, Permanent General did not ask the trial court to take judicial notice of any of these facts nor are there any supporting affidavits or other sworn supporting material in the record. Counsel’s assertions are not sufficient.
Based on all of these considerations this court finds that the trial judge erred in granting the Motion for Summary Judgment.
Therefore
it is
ORDERED AND ADJUDGED that the Final Summary Judgment is reversed and this cause is remanded for action consistent with this order and opinion.
It is further
ORDERED AND ADJUDGED that the Appellant’s Motion for Attorney’s Fees on appeal is GRANTED contingent with the Appellant ultimately prevailing in the proceedings below. The trial court shall determine the reasonable amount of appellant attorney’s fees to be awarded.
DONE AND ORDERED at
___________________________
DAVID A. DEMERS
Circuit Judge, Appellate Division
___________________________
PETER RAMSBERGER
Circuit Judge, Appellate Division
___________________________
ANTHONY RONDOLINO
Circuit Judge, Appellate Division
Copies furnished to:
Judge Dorothy Vaccaro
Judge Myra Scott McNary
James J. Dowling, Esquire
1150
Joseph T. Metzger, Esquire
Kari A. Metzger, Esquire
[1]“ If the true
facts had been known to the insurer pursuant to a policy requirement or other
requirement, the insurer in good faith would not have issued the policy or
contract, would not have issued it at the same premium rate, would not have
issued a policy or contract in as large an amount, or would not have provided
coverage with respect to the hazard resulting in the loss.” §627.409(1)(b),