Legal Topics

Insurance — Personal injury protection — Rescission of policy — Material misrepresentations on application — Failure to disclose prior PIP claim — Insurer not entitled to summary judgment on its affirmative defense that recovery under policy was barred because the insured failed to disclose on application that he had made a PIP claim within 36-month period preceding application date — Records of medical providers related to a prior PIP claim with another insurer are unauthenticated, inadmissible hearsay that cannot be considered in support of insurer’s motion for summary judgment on material misrepresentation defense — Even if admissible, records show that prior PIP claim was made by medical providers to whom insured had assigned policy benefits, not by insured — Because insurer pled defense that insured made prior PIP claim, it cannot now proceed on unpled argument that providers made claims “on behalf” of insured; and in any event, there is no evidence or inference that providers made claims for insured’s benefit — Summary judgment entered in favor of provider/assignee

Sep 05th, 2025 in by admin

Insurance — Personal injury protection — Rescission of policy — Material misrepresentations on application — Failure to disclose prior PIP claim — Insurer not entitled to summary judgment on its affirmative defense that recovery under policy was barred because the insured failed to disclose on application that he had made a PIP claim within 36-month period preceding application date — Records of medical providers related to a prior PIP claim with another insurer are unauthenticated, inadmissible hearsay that cannot be considered in support of insurer’s motion for summary judgment on material misrepresentation defense — Even if admissible, records show that prior PIP claim was made by medical providers to whom insured had assigned policy benefits, not by insured — Because insurer pled defense that insured made prior PIP claim, it cannot now proceed on unpled argument that providers made claims “on behalf” of insured; and in any event, there is no evidence or inference that providers made claims for insured’s benefit — Summary judgment entered in favor of provider/assignee

GREEN MOUNTAIN MED CON, INC., Plaintiff, v. LYNDON SOUTHERN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2022-012573-CC-25. Section CG01. February 27, 2025. Jorge A. Perez Santiago, Judge. Counsel: Majid Vossoughi and Brad Blackwelder, Majid Vossoughi, P.A., Miami, for Plaintiff. Melissa Muros and Colin Milam, Hernandez & Valois, Ft. Lauderdale, for Defendant.

ORDER ON COMPETING MOTIONSFOR SUMMARY JUDGMENT

THIS CAUSE came before the Court on January 30, 2025, on (i) Defendant’s Motion for Final Summary Judgment Due to No Coverage for Material Misrepresentation (“Defendant’s Motion for Summary Judgment”) (docket # 111) and (ii) Plaintiff’s Response to Defendant’s Motion for Summary Judgment / Plaintiff’s Motion for Summary Judgment as to Count II of Plaintiff’s Complaint and Defendant’s Affirmative Defense of Material Misrepresentation (“Plaintiff’s Motion for Summary Judgment”) (docket # 127).

The parties were represented by counsel at the hearing who presented arguments to the Court. Melissa Muros, Esq. and Colin Milam, Esq. appeared on behalf of the Defendant, and Majid Vossoughi, Esq. and Brad Blackwelder, Esq. appeared on behalf of the Plaintiff.

The Court having reviewed the matter, the relevant legal authorities, the entire Court file, and having heard argument from counsel and being otherwise fully advised in the premises, hereby makes the following factual findings and conclusions of law, and enters this Order DENYING Defendant’s Motion for Summary Judgment and GRANTING Plaintiff’s Motion for Summary Judgment, for the reasons set forth below as well as those stated on the record.

BACKGROUND & FACTUAL FINDINGS

On May 16, 2022, Plaintiff filed this breach of contract suit against Defendant for unpaid personal injury protection (“PIP”) benefits (docket # 2).“Material Misrepresentation” Defense Pled by Defendant

The critical issue in this case is whether the Defendant’s named insured, Pablo Casademunt, made a “material misrepresentation” in response to question #16 of the Defendant’s application for insurance which provides as follows:

APPLICANT QUESTIONNAIRE

16. Have you or any driver or household resident, or someone on your behalf, made or filed a claim for Personal Injury Protection (PIP) within the 36 months prior to the date of this application?

(Emphasis added).

On October 5, 2022, Defendant served its Answer and Affirmative Defenses to Plaintiff’s Complaint (docket # 13) and raised its “material misrepresentation” affirmative defense alleging that its insured, “Pablo T Casademunt Pollan, did not disclose that he made a PIP claim with Infinity Insurance”:

AS A FIRST AFFIRMATIVE DEFENSE, the Defendant affirmatively alleges that pursuant to Fla. Stat. §627.409, the subject policy of insurance, and the application for the policy of insurance recovery is barred and/or precluded under the policy of insurance on the grounds that the named insured made material misrepresentations, omissions, concealments of fact or incorrect statements on the application for the policy of insurance. Specifically, the policy at issue explicitly asks whether any driver or household member filed a Personal Injury Protection claim in the previous thirty-six (36) months, to which the named insured answered “No,” despite that being inaccurate. The purpose of the question at issue is to allow the Defendant the information necessary to adequately analyze risk and properly price the policy. In the present case the applicant, Pablo T Casademunt Pollan, did not disclose that he made a PIP claim with Infinity Insurance under claim number 21123738046 regarding date of loss 8/10/2021, within the relevant thirty-six (36) month period preceding the application. Had the Defendant known of the prior PIP claim it would have materially affected the risk such that the policy would never have been issued under the underwriting guidelines of the Defendant, amounting to a material misrepresentation under the law.

(Emphasis added).

On October 29, 2024, the Court set this case for jury trial to begin the week of February 3, 2025 (docket # 110).

Defendant’s Motion for Summary Judgmentand Supporting Affidavit

On November 22, 2024, Defendant filed its Motion for Summary Judgment (docket # 111). Defendant’s motion argues that Pablo Casademunt failed to disclose that he made a prior PIP claim with Infinity Insurance on the application for insurance resulting in a “material misrepresentation.”1

On November 23, 2024 Defendant filed the affidavit of Farah Florestal, its adjuster and corporate representative, in support of Defendant’s Motion for Summary Judgment (docket # 112). Florestal’s affidavit attached various documents that appear to be Defendant’s documents.2 The affidavit also attached documents from a different insurer, Infinity Insurance. These are not Defendant’s business records. The affidavit further attached documents from third-party medical providers. These are neither the Defendant’s nor Infinity Insurance’s business records.

Plaintiff’s Motion for Summary Judgment

On December 6, 2024 Plaintiff filed its Motion for Summary Judgment (docket # 127). Plaintiff’s motion argues that Defendant has failed to come forth with admissible evidence sufficient to meet its burden of proof as to its “material misrepresentation” affirmative defense and, accordingly, Plaintiff is entitled to entry of summary judgment as a matter of law.

Specifically, Plaintiff’s Motion for Summary Judgment argues that documents belonging to Infinity Insurance and third-party medical providers are unauthenticated and inadmissible hearsay which cannot be considered by the Court at summary judgment. Plaintiff further argues that even if the Court were to consider these documents over the Plaintiff’s objection, these documents establish that the prior PIP claims with Infinity Insurance were made by two (2) medical providers (Atlantic Medical and Diagnostic Corp. and Red Diamond Medical Group), not Pablo Casademunt. Plaintiff’s Motion for Summary Judgment also objected to any argument by the Defendant that the medical providers’ PIP claims were made “on behalf of” Pablo Casademunt because Defendant did not plead that the prior PIP claims were made on the insured’s behalf. At the hearing, Plaintiff also argued that PIP claims made by assignee medical providers were not made “on behalf of” — which means to do so as someone’s representative or in their interests — Pablo Casademunt. The medical providers made PIP claims in pursuit of their own interests.

Defendant’s Opposition and Additional “Affidavit”

On January 2, 2025, Defendant filed the affidavit of Jill Douglas, Infinity Insurance’s Records Custodian (docket # 137). This appeared to be in response to the evidentiary issues raised in Plaintiff’s motion for summary judgment. Douglas’ affidavit attached documents that appear to be Infinity Insurance’s documents.3 But they are not. Like Florestal’s affidavit, Douglas’ affidavit attached the same third-party medical providers’ documents that are not Infinity Insurance’s business records.

On January 20, 2025 Defendant filed its Opposition to Plaintiff’s Response to Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Summary Judgment as to Count II of Plaintiff’s and Defendant’s Affirmative Defense of Material Misrepresentation (“Defendant’s Opposition”) (docket # 140). Defendant’s Opposition cited to a document from Atlantic Medical and Diagnostic Corp., titled “Application for Florida ‘No Fault’ Benefits.” This document was attached to Douglas’ affidavit so Defendant could argue, for the first time, that the prior PIP claim made with Infinity Insurance was filed both “by and on behalf of” Pablo Casademunt. Defendant’s Opposition did not respond to Plaintiff’s argument that the “on behalf of” argument was not pleaded in its affirmative defenses.

Parties’ Representation to the Courtat Case Management Conference

On January 27, 2025, the Court held an in-person case management conference to address pretrial issues (docket # 147). At the case management conference, both parties represented to the Court that they would like to proceed on their respective summary judgment motions in lieu of trial and that the Court’s rulings on the competing motions would be dispositive of this action. Pursuant to the parties’ representation and agreement, a hearing on both parties’ summary judgment motions was noticed to occur on January 30, 2025 (docket # 154).

LEGAL ANALYSISFederal Summary Judgment Standard Adopted in Florida

Florida has adopted the federal summary judgment standard within amended Fla. R. Civ. P. 1.510. See, In re: Amendments to Florida Rule of Civil Procedure 1.510, 317 So.3d 72 (Fla. 2021) [46 Fla. L. Weekly S95a]. Summary judgment is not a “disfavored procedural shortcut” but rather “an integral part” of the Rules. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

The moving party is entitled to entry of summary judgment if it “shows that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a).

As stated in the seminal case of Celotex, “the plain language of [the Rule] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” 477 U.S. at 322-23 (emphasis added).

The nonmoving party “must present affirmative evidence in order to defeat a properly supported motion for summary judgment”. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). A “scintilla” of evidence is “insufficient” to avoid summary judgment and “if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted”. Id. at 249-52.

“Summary judgment is not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has” in support of its claim. Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007); see also, Forsythe v. Ticor Title Ins. Co., Case No. 2:08 cv 337, Dist. Court, ND Indiana, June 28, 2010).

Defendant’s Material Misrepresentation Defense Failsas a Matter of Law Because Unauthenticated, HearsayDocuments are Insufficient to Meet its Burden of Proof

As contemplated by Celotex, Plaintiff’s Motion for Summary Judgment sets forth that despite more than adequate time for discovery (nearly three years of litigation), Defendant has failed to present evidence sufficient to establish its “material misrepresentation” defense.

To overcome Plaintiff’s Motion for Summary Judgment and avoid the entry of summary judgment against it, Defendant was required to establish that Pablo Casademunt made a prior PIP claim with Infinity Insurance, as pled, by proffering admissible summary judgment evidence. See Fla. R. Civ. P. 1.510(c)(4) (“[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence. . .”) (emphasis added); see also, Macuba v. Deboer, 193 F.3d 1316 (11th Cir. 1999) (holding that a court cannot consider inadmissible hearsay when ruling on a motion for summary judgment); Winskunas v. Birnbaum, 23 F.3d 1264 (7th Cir. 1994) (affirming entry of summary judgment against party whose supporting affidavit was premised upon inadmissible hearsay).

The law is clear that any factual assertions made or relied upon by the Defendant that are not supported by admissible summary judgment evidence within the record before the Court, do not create a material issue of fact. Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir. 2000) (“unsupported allegations do not create a material issue of fact”); see also, State v. Thompson, 852 So.2d 877, 888 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D1807b] (“argument of counsel is not evidence”).

Defendant attempts to establish that Pablo Casademunt made a prior PIP claim with Infinity Insurance through Florestal’s and Douglas’ affidavits (docket #s 112, 137) and the attached documents. But neither affidavit is sufficient to meet the Defendant’s burden and, accordingly, Plaintiff is entitled to entry of summary judgment in its favor on the “material misrepresentation” issue as a matter of law.

Both affidavits attach records from Atlantic Medical and Diagnostic Corp. and Red Diamond Medical Group which Defendant relied upon. But a third party’s documents are neither Defendant’s nor Infinity Insurance’s business records.4 Neither the Defendant nor Infinity Insurance “ma[d]e” any of the medical providers’ records, it is not their “regular practice” to “make such . . . record[s],” and they cannot testify from personal knowledge about whether these records were “made at or near the time of the event” or “made by or from information transmitted by a person with knowledge” because the documents were prepared by third-party medical providers unrelated to Defendant or Infinity Insurance.

Although the affidavits contain the “magic words” mandated by Fla. Stat. 90.803(6) to establish the business records exception to the rule against hearsay, this is not the end of the Court’s inquiry. Landmark American Ins. Co. v. Pin-Pon Corp., 155 So.3d 432 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D191a] (“the fact that a witness employed all the ‘magic words‘ of the exception does not necessarily mean that the document is admissible as a business record”). “[T]he fact that a document is incorporated into a business’s records does not automatically bring the document within the business records exception to the hearsay rule . . . Otherwise, every letter which [a party] received in connection with the operation of [its] business and which was subsequently retained as part of [its] business records ipso facto would be fully competent to prove the truth of its contents.” Id.; see also, Health and Wellness Evolution Co. (Earl Esperon) v. Infinity Auto Ins. Co., 3D22-1865 (Fla. 3d DCA, June 19, 2024) [49 Fla. L. Weekly D1324b] (following rehearing of a decision initially suggesting a third-party law firm’s letter was admissible as Infinity Auto Insurance Company’s business record, the court reversed judgment in the insurer’s favor because the insurer relied on a letter from a third-party law firm but failed to establish any hearsay exception).

The Court finds that the medical providers’ documents attached to Florestal’s “Application for Florida ‘No Fault’ Benefits,” are unauthenticated,5inadmissible and Douglas’ affidavits, including Atlantic Medical and Diagnostics Corp.’s hearsay which cannot be considered at summary judgment. So, the record before the Court is devoid of any documents from which the Defendant could even attempt to establish that Pablo Casademunt “made a PIP claim with Infinity Insurance,” as alleged within its affirmative defense. Accordingly, Defendant’s affirmative defense fails as a matter of law.

If the Court were to Considerthe Medical Providers’ Hearsay Records,Then the Prior PIP Claim with Infinity Insurance wasMade by the Medical Providers and Not Pablo

Even if the Court was to consider the inadmissible hearsay documents attached to Florestal’s and Douglas’ affidavits, Defendant still fails to meet its burden of establishing that Pablo Casademunt made a prior PIP claim with Infinity Insurance. Those documents establish that Atlantic Medical and Diagnostic Corp. and Red Diamond Medical Group made prior PIP claims with Infinity Insurance, not Pablo Casademunt.

The terms “made or filed a claim for [PIP]” or “claim” are neither expressly defined in Defendant’s insurance policy nor in the insurance application. However, “claim” is a commonly used word which must be given its plain and ordinary meaning. See e.g., Southeastern Fisheries Assoc., Inc. v. Dep’t of Natural Resources, 453 So. 2d 1351, 1353 (Fla. 1984) (“[w]here a statute does not specifically define words of common usage, such words must be given their plain and ordinary meaning”).

The Court finds that the term “claim” in this context means a demand for payment of monies from an insurance company. See e.g., Dampier v. Dep’t of Banking & Fin., 593 So. 2d 1101, 1107 (Fla. 1st DCA 1992) (“[i]n other words, ‘claim’ means the amount which a person may ‘demand’ from the Fund”); Eagle Am. Ins. Co. v. Nichols, 814 So.2d 1083 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D596a] (“A claim under the policy is a demand against the insured for money. In this case, there was but one demand for money”); Washington v. GEICO, No. 6:16-cv-1775-Orl-40KRS (MD Fla. 2017) (“Black’s Law Dictionary” defines “claim” as “[a] demand for money, property, or a legal remedy to which one asserts a right”); RREF SNV-FL SSL, LLC, v. Shamrock Storage, 250 So.3d 788 (Fla. 1st DCA 2018) [43 Fla. L. Weekly D1498a] (“ ‘Claim’ means a right to payment”); The Penn Ins. Co. v. Kuriger, No. 14-14-00986-CV (Tex. Ct. of Appeals, 14th Dist. 2016) (“claim” means “a demand or request for something considered one’s due” . . . “a demand for money, property, or a legal remedy to which one asserts a right”); State Farm v. Chiropractic One, Inc., 18 Fla. L. Weekly Supp. 868a (Fla. 9th Cir. Ct., J. Evans, Jan. 19, 2011) (“[i]n the context of insurance, the term ‘claim’ is commonly understood to mean an assertion of a right to payment of benefits under an insurance policy”); Leviton Mfg. CO., Inc. v. Pass & Seymour, Inc., 264 F. Supp. 3d 421 (ED NY 2017) (agreement did “not define the word ‘claim,’ but its meaning is clear enough. It is a ‘demand or request for something considered one’s due.’ . . . it means that someone is asking for money, property or other consideration to come their way”); In re Bridge Contr. Servs. of Fla., Inc., 12 Civ. 3536 (S.D.N.Y. Sept. 5, 2016) (relying on definition of “claim” in holding that “[u]ntil Ayala made a demand for money, property, or a legal remedy, there was no event that required Bridge to indemnify Tutor Perini”).

Defendant has not come forth with any evidence showing that Pablo Casademunt ever made a claim and/or demand for payment of money to Infinity Insurance. The records Defendant relies on — Infinity Insurance’s PIP Log and checks — reflect that it was two medical providers who submitted bills demanding payment of PIP benefits and received payment of their bills from Infinity Insurance. And Infinity Insurance’s checks are addressed to the medical providers, reflect the medical providers as the payee, and state in large type “Your claim payment” in clear reference to the claims made by the medical providers.

The “Application for Florida ‘No Fault’ Benefits” from Atlantic Medical and Diagnostic Corp. relied on by the Defendant does not change this result. This document is Atlantic Medical and Diagnostic Corp.’s document (its on their letterhead) for submission of their PIP claim to Infinity Insurance. The fact that Pablo Casademunt may have signed this document does not mean that he made a PIP claim with Infinity Insurance. In fact, Pablo Casademunt’s signature appears below language providing for release of his medical records “as the company may deem necessary to perfect its rights of recovery under the No Fault Act,” and serves to enable Atlantic Medical and Diagnostic Corp. to make a PIP claim with Infinity Insurance. (Emphasis added).

Accordingly, Defendant’s evidence did not establish that Pablo Casademunt made or filed a PIP claim with Infinity Insurance. So Defendant cannot show that Pablo Casademunt’s answer to Defendant’s (inartful) question # 16 was a misrepresentation.Even if the Court were to Consider the Medical Providers’Hearsay Records, Same Establish that Pablo Casademuntwas Legally Barred from Making a PIP Claim

Included within the medical providers’ records are assignments of benefits (AOB) which assigned the PIP benefits under Pablo Casademunt’s insurance policy to the two (2) medical providers. Under well-established Florida law, once an insured assigns their PIP benefits they have no legal right to make a claim under the policy. As stated by the Third District Court of Appeal in United Auto. Ins. Co. v. Otero, 39 So. 3d 563 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1683b], citing to Livingston v. State Farm, 774 So. 2d 716, 718 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D533c]:

[A]n unqualified assignment transfers to the assignee all the interest of the assignor under the assigned contract, and . . . the assignor has no right to make any claim on the contract once the assignment is complete.6

Accordingly, because Pablo Casademunt assigned his PIP benefits, he had no legal right to make a claim with Infinity Insurance. Only Atlantic Medical and Diagnostic Corp. and Red Diamond Medical Group could have “made or filed a claim for [PIP]” with Infinity Insurance pursuant to their respective AOB.

As Pablo Casademunt did not, and could not have, “made or filed a claim for [PIP]” with Infinity Insurance, his answer to question # 16 on the application for insurance could not have been a misrepresentation.

Defendant’s Argument that the Medical Providers’PIP Claims were made “On Behalf” of Pablo Casademuntis Procedurally Barred and Rejected

At the hearing, defense counsel argued that any distinction between a claim made by Pablo Casademunt directly and a claim made by a medical provider pursuant to an assignment of benefits from Pablo Casademunt was irrelevant or immaterial because any claim by the medical provider was purportedly made “on behalf” of Pablo Casademunt.

The Court rejects the Defendant’s “on behalf” argument on multiple grounds and finds this distinction is, in fact, critical in this case.

First, Florida courts have repeatedly held that a defendant is bound by its pleading and is barred from arguing or attempting to prove at summary judgment an unpled defense. See, Reina v. Gingerale, 472 So. 2d 530, 531 (Fla. 3d DCA 1985) (“[a]t a summary judgment hearing, the court must only consider those issues made by the pleadings”); BSP/Port Orange, LLC., v. Water Mill Properties, Inc., 969 So. 2d 1077 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D2494b] (same); Arky, Freed, Stearns v. Bomar, 537 So. 2d 561 (Fla. 1989) (“litigants at the outset of a suit must be compelled to state their pleadings with sufficient particularity for a defense to be prepared”); Michael H. Bloom, P.A. v. Dorta-Duque, 743 So. 2d 1202, 1203 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D2532a] (“a [party] cannot be found liable under a theory that was not specifically pled”).7 The Defendant cannot now on summary judgment argue or seek to establish that anyone other than Pablo Casademunt made a PIP claim with Infinity Insurance.

As set forth above, the affirmative defense pled by the Defendant in this case alleges that Pablo Casademunt himself made a PIP claim with Infinity Insurance (“he made a PIP claim”). The defense simply does not allege that someone else (i.e., a medical provider) made a PIP claim “on behalf” of Pablo Casademunt. This distinction is significant. The Defendant cannot proceed on the unpled “on behalf” issue. See Advanced Florida Med., 364 So. 3d at 1133 (insurer who pled assignor “failed to appear” for EUO was not permitted to argue he “failed to submit”).

But even if Defendant had pled the “on behalf” theory for its material misrepresentation defense, this Court would still conclude based on the record that the PIP claims made by the two (2) medical providers with Infinity Insurance were not done “on behalf” of Pablo Casademunt. The medical providers were assignees of Pablo Casademunt’s rights and benefits under the policy. They were not his agent or representative. And, as stated above, an unqualified assignment transfers to the assignee (i.e., the medical providers) all the interest of the assignor (i.e., Pablo Casademunt) under the assigned contract. So, the medical providers assumed Pablo Casademunt’s interest under the insurance policy so they could make a claim for PIP benefits for their pecuniary gain. There is no evidence or inference from the evidence that the medical providers made PIP claims for Pablo Casademunt’s benefit.

Defendant made a public policy argument in response to this conclusion at the hearing. It suggested that the question in the application was designed to uncover this particular risk, and that the Court’s ruling undermines the question’s purpose. The Court understands Defendant’s frustration with this result. But this is the result the facts and law demand. Defendant might be right that its subjective intent when it designed this question was to uncover any PIP claims made under his insurance policy. But words, and their plain meaning, matter. Defendant’s question was not broad enough to cover the situation presented here, and that is the question Pablo Casademunt answered. Pablo Casademunt cannot be blamed, and the medical provider’s PIP claims rejected, because he did not interpret the question the way Defendant subjectively hoped he would to disclose that he assigned his rights under his prior policy to medical providers so that they might make PIP claims. And there is a solution to Defendant’s public policy concern. Defendant could have crafted (and can craft) a question (or questions) on its insurance application to capture this situation.

Based on the foregoing, the Court finds that there was no “material misrepresentation” and that Plaintiff is entitled to entry of final summary judgment in its favor as a matter of law.

CONCLUSION

Accordingly, based on this Court’s analysis set forth above, it is ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment as to Count II of Plaintiff’s Complaint and Defendant’s Affirmative Defense of Material Misrepresentation is hereby GRANTED.

The parties have previously stipulated and this Court has entered Orders as to the issues of reasonableness, relatedness, and medical necessity (docket # 158 & 159), and same provide that the payable amounts for services rendered by Plaintiff are governed by Defendant’s valid fee schedule election pursuant to Fla. Stat. 627.736(5)(a)(1-5) within its policy. Accordingly, the Plaintiff is hereby instructed to confer with defense counsel and submit a proposed Final Judgment in Favor of Plaintiff within five (5) days reflecting the fee schedule amounts owed Plaintiff for the Court’s consideration, reserving jurisdiction to determine and award counsel for Plaintiff’s attorney’s fees and costs.

__________________

1Defendant’s Motion for Summary Judgment also cites, in part, to a different portion of the application titled “Accidents & Convictions” which asked the insured to “[l]ist all accidents, claims and moving violations any DRIVER or RESIDENT . . . had within the last three years.” But this portion of the application was not pled as a factual basis in support of Defendant’s affirmative defense. And even if it was, the “materiality” element of the defense hinged upon Pablo Casademunt having made a prior PIP claim (not any prior accidents or moving violations).

2These documents include Defendant’s application for insurance, policy of insurance, underwriting guidelines, notice of rescission, premium refund check, and a denial letter.

3These documents include Infinity Insurance’s PIP Payment Record / PIP & Medical Payment Log (“PIP Log”) and copies of payment drafts to medical providers (Atlantic Medical and Diagnostic Corp. and Red Diamond Medical Group).

4Under section 90.803(6)(a), to establish the business records hearsay exception the proponent must establish that “(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and that (4) it was a regular practice of that business to make such a record”. Roesch v. U.S. Bank Nat’l Ass’n, 294 So. 3d 429, 432 (Fla. 2d DCA) [45 Fla. L. Weekly D846a], rev. denied, 2020 WL 3568334 (July 1, 2020); see also, Yisrael v. State, 986 So.2d 491, 496 (Fla. 2008) [33 Fla. L. Weekly S131a].

5See, Fla. Stat. 90.901.

6See also, Estate of Basile v. Famest, Inc., 718 So. 2d 892 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D2144a] (because an assignment vests in the assignee the right to enforce the contract, an assignor retains no rights to enforce the contract after it has been assigned); State Farm v. Ray, 556 So. 2d 811 (Fla. 5th DCA 1990) (the assignor has no right to make any claim on contract once assignment is complete); Superior Ins. Co. v. Libert, 776 So. 2d 360 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D381a] (same); Oglesby v. State Farm, 781 So. 2d 469 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D702a] (only the insured or the medical provider can “own” the claim or cause of action against the insurer at any one time); Garcia v. State Farm, 766 So. 2d 430 (Fla. 5th DCA 2000) [25 Fla. L. Weekly D2050c] (same).

7See also Advanced Florida Med. Group, Corp. v. Progressive Am. Ins. Co., 364 So. 3d 1131, 1133 (Fla. 6th DCA 2023) [48 Fla. L. Weekly D1078b] (insurer could not deviate from averment in its pleading — failure to appear to examination under oath — by arguing the insured failed to submit to an examination under oath); Strahan Manufacturing Co. v. Pike, 194 So. 2d 277 (Fla. 2d DCA 1967) (reversing lower court and holding that defendant’s motion for summary judgment concerned estoppel which was not raised in any pleadings so granting summary judgment in favor of Defendant was reversible error); Sunbeam Television Corp. v. Mitzel, 83 So. 3d 865 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D183a] (“when a [party] pleads one claim but tries to prove another, it is error for a trial court to allow the [party] to argue the unpled issue at trial”); H.L. Mills v. Dade County, 206 So. 2d 227 (Fla. 3d DCA 1968) (reversing lower court and holding that affirmative defense of estoppel could not be raised on motion for summary judgment since same was not properly raised within the pleadings); Couchman v. Goodbody & Co., 231 So. 2d 842 (Fla. 4th DCA 1970) (reversing summary judgment based on an unpled defense and holding that on motion for summary judgment issues to be considered are those made by the pleadings); Meigs v. C.F. Lear, 191 So. 2d 286 (Fla. 1st DCA 1966) (summary judgment is not to be used as a substitute for parties’ pleadings and where defenses of estoppel and statute of limitation were not raised in the pleadings such defenses did not constitute issues in case in which parties could submit evidence either at trial or in summary judgment proceedings); B.B.S. v. R.C.B., 252 So. 2d 837 (Fla. 2d DCA 1971) (an affirmative defense must be pleaded and not raised by motion for summary judgment); Accurate Metal Finishing Corp. v. Carmel, 254 So. 2d 556 (Fla. 3d DCA 1971) (“[a]ffirmative defenses must be pleaded”); Straub v. Muir-Villas Homeowners Ass’n, Inc., 128 So. 3d 885 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D2655a] (finding error in trial court’s consideration of an unpled defense); Du Pont De Nemours & Co. v. Desarrollo Indus. Bioacuatico S.A., 857 So. 2d 925 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2171a] (rejecting a party’s attempt to inject an unpled failure to warn theory of liability into a negligence action and reversing the trial court); Robbins v. Newhall, 692 So. 2d 947, 949 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D945b] (reversing final judgment where a party had alleged three specific acts of negligence, but tried the case on a fourth alleged act that was never pled); Bank of America v. Asbury, 165 So. 3d 808, 809 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D1230a] (“[l]itigants in civil controversies must state their legal positions within a particular document, a pleading, so that the parties and the court are absolutely clear what the issues to be adjudicated are”); Assad v. Mendell, 550 So. 2d 52, 53 (Fla. 3d DCA 1989) (a party should not suffer the unfair surprise and prejudice of legal claims and theories not encompassed by the pleadings); Freshwater v. Vetter, 511 So. 2d 1114, 1115 (Fla. 2d DCA 1987) (“[a] judgment upon a matter entirely outside the issues made by the pleadings cannot stand, and such a judgment is voidable on appeal”); Goldschmidt v. Holman, 571 So. 2d 422 (Fla. 1990) (the law is clear that a judgment must be based on a claim or defense that was properly pled).