Unclogging the Dockets One Summary Judgment at a Time!

Congratulations to Universal Property & Casualty Insurance Company on two summary judgments this week!

In Loiseau v. Universal Prop. & Cas. Ins. Co., Judge Susan Barthle in Pasco County granted Universal’s Motion for Summary Judgment, entering judgment in Universal’s favor less than a week before the case was set for trial. Andrew Labbe handled the summary judgment hearing.

The lawsuit arose from a property damage claim related to Eta. Universal determined that the covered damage fell below the deductible. The Plaintiff disagreed and filed suit for breach of contract. During the course of litigation, Universal learned that the Plaintiff failed to disclose two prior water loss claims on the property, which were made only 2 years before she applied for insurance. Plaintiff had also filed lawsuits based on those prior claims.

Universal moved for summary judgment, asking the court to find that the policy was void from inception in light of the misrepresentation on the application. The misrepresentation was material because, based on its binding guidelines, Universal would not have issued the policy.

Plaintiff did not dispute that there was a material misrepresentation on the application, but argued that because Universal had not yet voided the policy and refunded the premiums it was not entitled to summary judgment. In response, Universal relied on case law which holds that refunding premiums is not a condition precedent to voiding a policy. Universal also argued that, while an insurer can unilaterally rescind a policy, there is nothing precluding Universal from asking the court to determine the policy is void as a matter of law, particularly where the misrepresentation is discovered during litigation.

The judge ultimately agreed with Universal, finding that the undisputed facts show that Plaintiff made a material misrepresentation on her application. Judge Barthle went on to hold that nothing in the statute or case law precluding Universal from seeking a judicial determination that the policy is void from inception, and that refunding premiums is not required prior to voiding a policy. The court granted final summary judgment in favor of Universal, which now has the opportunity to recover its fees and costs based on an expired PFS.

Universal’s success in the courtroom continued over in Orange County, Florida, where Judge James Craner entered summary judgment on a “residence premises” issue.  Carlos Marante prevailed on the motion for summary judgment on Universal’s behalf.

In Reyes-Fernandez v. Universal, the policy listed the insureds’ new current mailing address (their now permanent home), but listed the insured property as the “Insured Location”, which was defined in the policy as the “residence premises” as shown on the declarations, for use as a residence. This requires the insured(s) to reside at that property at the time of the loss.  The Plaintiffs purchased the insured property but then moved. Upon moving, they rented the insured property, during which time a loss occurred.  Universal paid a portion of the claim even though the company knew the insureds no longer resided at the property.   Since they did not reside there, however, the structure did not meet the definition of “dwelling”.

In response to the Complaint, Universal asserted the insureds did not reside at the dwelling at the time of loss.  After securing evidence of deeds, a lease agreement, other written discovery, and testimony, all of which verified the Plaintiffs were not living at the property, Universal moved for summary judgment.  In response to the motion for summary judgment, Plaintiffs’ counsel argued (1) Universal had the burden to show an exclusion applied as coverage was provided; (2) Universal was on notice of the Plaintiffs’ other permanent home as it was provided for on the policy and as such, allowed coverage terms to remain in effect as there was nothing to differentiate what they should have listed on the declaration; and (3) the insurer “opened coverage” and continue acceptance of the premiums on the new policy term despite having listed the new mailing address was something they relied on for coverage and the instant action.  (The new catch-phrase of “opening up coverage” is just an expression, not a legal theory.  We remain baffled by its use since there is case law and a statute that show there is no such thing!)

In reply, Universal informed the court that: (1) this issue does not involve a policy exclusion, but what type of property for which the policy provides coverage; (2) listing two separate addresses does not provide notice of a permanent residence when one is a mailing address, with no obligation for Universal to make further inquiry; and (3) the opened coverage and acceptance of premiums means nothing, as this amounts to an attempt of estoppel from bringing forth our defense, and informing the court that thanks to Notice of Intent to Initiate Litigation laws, we had informed them of our position prior to the lawsuit.

“Residence premises” is defined as the location of the residence listed on the declaration pages of the policy, noting the residence premises is unequivocally defined as the place where the insured resides. Arguelles v. Citizens Prop. Ins. Corp., 278 So. 3d 108, (Fla. Dist. Ct. App. 2019).  “Residence premises” means the insured must both reside at the property and that that property be shown on the residence premises as listed on the declaration of the policy. Harrington v. Citizens Property Insurance Corporation, 54 So.3d 999 (Fla. 4th DCA 2010).  Where the insureds’ son and daughter-in-law were living at the residence premises when a fire occurred, there was no coverage for that damage as the insureds themselves were not living at the residence premises at the time of the loss.  Daniel v. Florida Residential Property and Casualty Joint Underwriting Association, 718 So.2d 936 (Fla. 3rd DCA 1998).  Despite an insured’s intent to move back following the rental of the insured property, the insured still did not live there at the time vandalism occurred at the property, so there could be no coverage.  Universal Prop. & Cas. Ins. Co. v. Gonzalez-Perez, 48 Fla. L. Weekly 1415 (Dist. Ct. App. 2023).  Despite the insured moving into and residing at the residence premises, the insured had not been living there at the time the loss occurred, thus not allowing for coverage.  Florida Residential Property & Casualty Joint Underwriting Assoc. v. Anthony, 842 So.2d 951 (Fla. 4th DCA 2003).

The “residence premises” issue has been a firm favorite since Groelle & Salmon obtained its first summary judgment on the issue on behalf of Florida Select Insurance Company back in the early 2000’s.  Former Pasco County Judge Stanley Mills was presiding over Abrahamsen v. Florida Select when we raised there was no coverage for the dwelling since the plaintiff never resided at the property.  Judge Mills, formerly serving in the criminal division, recognized the plaintiff as one of his “best customers” before entering judgment in the insurance company’s favor.  The owner of a tow truck company, Mr. Abrahamsen’s demise shortly after the summary judgment is memorialized in television programming: https://www.oxygen.com/in-ice-cold-blood/crime-time/florida-biker-brutally-murdered-porn-star-couple-scooter-abrahamsen.  Of course, Judge Mills never used a tow truck company:  https://www.tampabay.com/archive/2006/09/12/judge-sentences-car-in-his-spot-to-lockdown/https://abovethelaw.com/2006/09/judge-of-the-day-stanley-mills/.