CopyCited 52 times | Published | Supreme Court of Florida | 11 Fla. L. Weekly 62
...Any other consultations with him? If yes, give details. A. No. The company claimed it would never have issued the policy had the Carrolls related the true facts on the application. At the close of the Carroll's case at trial, Continental moved for a directed verdict based on section 627.409, Florida Statutes (1981), and Life Insurance Co....
...n language beyond the applicant's understanding, the applicant's error does not void the policy. The district court certified the instant question, however, because this Court has never directly declared that Permenter so modified the Shifflet rule. Section 627.409(1), Florida Statutes (1981), provides that misrepresentations, omissions, concealment of facts, and incorrect statements on an insurance application shall not prevent a recovery under the policy unless they are either: (1) fraudulent;...
...insurer in good faith either would *408 not have issued the policy or would have done so only on different terms had the insurer known the true facts. [1] In Shifflet this Court construed section 627.01081 of the Florida Statutes, the predecessor to section 627.409....
...oper course would have been to rule in accordance with Shifflet and then certify the question to this Court. United States Steel Corp. v. Save Sand Key, Inc.,
303 So.2d 9 (Fla. 1974); Hoffman v. Jones,
280 So.2d 431, 434 (Fla. 1973). The language of section
627.409 remains as unambiguous today as the wording of its predecessor examined in Shifflet....
...Accordingly, we answer the certified question in the negative, quash the opinion of the district court, and remand for proceedings consistent with this opinion. It is so ordered. BOYD, C.J., and OVERTON, EHRLICH and SHAW, JJ., concur. ADKINS, J., dissents. NOTES [1] § 627.409(1), Fla....
CopyCited 32 times | Published | Court of Appeals for the Eleventh Circuit | 1990 U.S. App. LEXIS 16804, 1990 WL 128219
...od faith would either not have issued the policy or ... would not have issued it [under those particular terms] ... if the true facts had been made known to the insurer as required either by the application for the policy ... or otherwise. Fla.Stat. § 627.409(1) (1985); see Continental Assurance Co....
...Statements Made to “Best of’ Applicant’s Knowledge Although we find that the district court accurately interpreted the applicable Florida law, we vacate the grant of summary judgment because the court misapplied the law to the facts of this case. 2 An essential prerequisite to the application of Florida Statutes section 627.409(1) is that the insured make an inaccurate statement in his application....
...The Eleventh Circuit has reached a similar result in evaluating the effect of insurance contract language that provided an applicant with greater protection than the relevant state insurance statute. See Oliver,
854 F.2d at 419-20 . The Alabama statute at issue 5 was in all material respects identical to Florida Statutes section
627.409....
...nintentional misstatements). The reasoning of Skinner and Oliver is fully applicable to this case. 6 The “knowledge and belief” language used by Penn Life in its application forms imposed a different requirement of accuracy than that provided in section 627.409. 7 Pellegrino and Taylor’s responses were in full accordance with this standard and provided truthful and accurate responses to the question they were asked. Furthermore, section 627.409(1) is inapplicable to the concealment of information not solicited by the insurer....
...Here, Penn Life only requested the disclosure of information to the best of the insured’s knowledge and belief. This is precisely the information that was provided by Pellegrino and Taylor. We agree with the pointed observation made by the district judge in Independent Petrochemical that: to read Fla.Stat. § 627.409(1) as broadly as [the insurer] urges this court to do would give insurers the power to play ‘Monday morning quarterback,’ potentially voiding all policies that prove to have been bad gambles for them, by uncovering some fact—not soli...
...the moon is made of cheese. Skinner,
804 F.2d at 151 (emphasis original). CONCLUSION Because the district court erred in finding that Pellegrino and Taylor’s responses to question 5h were misstatements warranting rescission under Florida Statutes section
627.409(1), the court’s grant of summary judgment to Penn Life must be vacated....
CopyCited 16 times | Published | Court of Appeals for the Eleventh Circuit | 1993 U.S. App. LEXIS 22405
...1 In August, 1991, National Union terminated the Interim Funding Agreement and informed the Insureds that it would cease payment under the policy as of September 3. 5 National Union based its claim for rescission on the following provision of Florida law, Fla.Stat. § 627.409(1): 6 (1) All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties....
...n as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise. Fla.Stat. § 627.409(1) (1989)....
...It is undisputed that the financial statements attached to the policy application were inaccurate, reflecting, as they did, fictional accounts receivable. Petitioners assert, however, that inaccuracies in financial statements attached to a policy application are not "statements" within the meaning of Fla.Stat. § 627.409....
...ovide coverage. They were part and parcel of the completed application and the district court correctly found that indisputably inaccurate figures in them were "statements and descriptions in [an] application for an insurance policy" under Fla.Stat. § 627.409....
...16 Misrepresentations and incorrect statements in a policy application bar recovery under the policy where, inter alia, they are material to the risk assumed by the insurer or the insurer would not have offered the same terms had it known the truth. Fla.Stat. § 627.409(1)(b) & (c)....
...18 Given that the documents attached to the policy application incontrovertibly contained misstatements and that these misstatements were material to the risk assumed by National Union and the insurer's decision to provide coverage, the district court properly found the policy void under Fla.Stat. § 627.409....
...Bank of Savannah, N.A.,
859 F.2d 865 , 870 (11th Cir.1988), and we have reversed a grant of summary judgment where the court failed to rule on a discovery motion. Fernandez, supra, at 571 . However, the absence of factual disputes material to the application of Fla.Stat. §
627.409 in this case persuades us that the district court did not err in granting National Union's summary judgment motion prior to ruling on Pledger's motion to compel....
...or further proceedings. 1 National Union prepared a complaint in May, 1990, but found its claim barred by the bankruptcy stay. National Union secured relief from the stay and then filed an amended complaint 2 In 1992, the Florida legislature rewrote section 627.409. See Fla.Stat. § 627.409 (1992 supp.)....
...granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court. 28 U.S.C. § 1292 (a)(1) (West 1993 supp.). 5 In William Penn, while affirming the absence of an intent element in Fla.Stat. § 627.409(1), we concluded that the policy at issue was not void because the parties had contracted for coverage more beneficial to the insureds than required by the Florida statute....
CopyCited 13 times | Published | Florida 3rd District Court of Appeal | 2006 Fla. App. LEXIS 14719, 2006 WL 2520655
...Consequently, Eagle's retention of the premiums entitled Gonzalez to receive restitution of the premiums she paid. The standard of review for an order of dismissal for failure to state a cause of action is de novo. Trotter v. Ford Motor Credit Corp.,
868 So.2d 593, 594 (Fla. 2d DCA 2004). Section
627.409, Florida Statutes (2005), provides as follows: (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 and is not a warranty....
...Because Gonzalez misrepresented material facts on her insurance application, it "may prevent recovery under the contract or policy." A similar statute, section
627.7282(1)(c), dealing with the charging of an incorrect premium, specifies for the cancellation of the policy and the return of any unearned premium to the insured. Section
627.409, however, is silent as to whether the insurer must return the premiums paid when there is a material misrepresentation....
...See 9 Fla. Jur.2d, Restoration of Parties to the Status Quo § 35 (2004). We agree with Judge Gross' concurring opinion in Leonardo v. State Farm Fire and Cas. Co.,
675 So.2d 176, 179 (Fla. 4th DCA 1996), in which he reasoned as follows: Construing section
627.409, the Supreme Court has noted that material misstatements in an insurance application subject the insurance contract "to being voided," similar to an "equitable ground for recission [sic]." Continental Assur....
...nother is required to make restitution to the other. See Greenfield v. Manor Care, Inc.,
705 So.2d 926, 930 (Fla. 4th DCA 1997)(receded from on other grounds). Eagle makes two arguments to justify its retention of the premiums. First, it states that section
627.409 does not mandate a refund of the premium....
...at the parties be restored to the status quo. Eagle also relies on Martinez v. General Ins. Co.,
483 So.2d 892 (Fla. 3d DCA 1986). *4 As we stated earlier, that case also involved the omission of the son's name from the application as material under section
627.409....
CopyCited 11 times | Published | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 10733, 2009 WL 2382408
...ivision's opinion affirming a final declaratory decree entered by the county court in favor of the Respondent, Oscar Salgado, Jr. ("Salgado"). Because we find that, absent an express exclusion by the legislature, the right of rescission contained in section 627.409, Florida Statutes (2003), applies to PIP insurance contracts issued pursuant to the Florida Motor Vehicle No-Fault Law, we conclude that the circuit court sitting in its appellate capacity departed from the essential requirements of the law....
...on made in his insurance application. In its answer and affirmative defenses, United asserted that Salgado's failure to list all residents of his household as required in his insurance application constituted a material misrepresentation pursuant to section 627.409, Florida Statutes (2003)....
...of Florida. Part II of Chapter 627, sections
627.401-627.442, is entitled "The Insurance Contract" and lays out the rules governing insurance contracts except those expressly excluded from its scope. The statutory right to rescission is set forth in section
627.409. Section
627.409, Florida Statutes (2003), provides that misrepresentations, omissions, concealment of facts and incorrect statements shall not prevent a recovery under a policy unless they are: (1) fraudulent; (2) material to the risk assumed by the...
...ain meaning." Id. (footnote omitted). Accordingly, where a misstatement or omission materially affects the insurer's risk, or would have changed the insurer's decision whether to issue the policy and its terms, the statute may preclude recovery. See § 627.409(1)(a), Fla....
...harmony with one another." Forsythe v. Longboat Key Beach Erosion Control Dist.,
604 So.2d 452, 455 (Fla. 1992). Although both the Florida Motor Vehicle No-Fault Law and the statutory right of rescission are found in Chapter 627, Salgado argues that section
627.409 does not apply to the Florida Motor Vehicle No-Fault Law....
...The only categories of insurance specifically excluded from Part II of Chapter 627 are: (1) Reinsurance. (2) Policies or contracts not issued for delivery in this state nor delivered in this state, except as otherwise provided in this code. (3) Wet marine and transportation insurance, except ss.
627.409,
627.420, and
627.428....
...should be given its plain and obvious meaning." City of Miami v. Valdez,
847 So.2d 1005, 1008 (Fla. 3d DCA 2003). In this case, the express language *601 of section
627.401 directly refutes Salgado's position that United's right of rescission under
627.409 is abrogated by the Florida Motor Vehicle No-Fault Law....
...For this Court to conclude otherwise would be a usurpation of the legislative function. Because Florida Motor Vehicle No-Fault Law policies are not expressly excluded from Part II of Chapter 627, they are, therefore, governed by that part, including section
627.409. V. AN INSURER'S FAILURE TO COMPLY WITH SECTION
627.728 DOES NOT ABROGATE AN INSURER'S ABILITY TO VOID THE POLICY AB INITIO PURSUANT TO SECTION
627.409 We now address the trial court's finding that because United's notice did not comply with section
627.728, [4] which required that notice of cancellation be given to the insured forty-five days prior to the effective date of cancellation, the policy was valid at the time of the accident....
...While it may be better public policy to require such a practice, it is not the province of this Court to effectuate such a policy change by way of case law. Additionally, this Court, along with others, has stated that an insurer's denial of coverage under section 627.409 is "a viable defense even in the absence of effective cancellation." Motors Ins....
...Woodcock,
394 So.2d 485, 488 (Fla. 3d DCA 1981). In Motors Insurance Corp. v. Marino,
623 So.2d 814 (Fla. 3d DCA 1993), this Court held that an insurer's failure to comply with section
627.728's cancellation procedure did not waive the insurer's right to rescind the policy under section
627.409....
...Specifically, this Court reasoned that "[a] material misrepresentation in an application for insurance, whether or not made with knowledge of its correctness or untruth, will nullify any policy issued and is an absolute defense to enforcement of the policy. Fla. Stat., Section
627.409; Continental Insurance [ Assurance ] Company v. Carroll,
485 So.2d 406, 409 (Fla.1986)." Id. at 815 (emphasis added). *602 Similarly, in Sauvageot v. Hanover Insurance Co.,
308 So.2d 583 (Fla. 2d DCA 1975), the Second District concluded that section
627.409's predecessor applied to all policies and therefore could be raised by an insurer to deny PIP insurance even where the insurer had not cancelled the policy pursuant to section
627.728's predecessor....
...In affirming the trial court, the Second District reasoned, "[t]here is nothing in s 627.0852 [the predecessor to section
627.728] ... that indicates the legislature intended to preclude an insurer from defending a suit upon the policy on the statutory grounds prescribed in s 627.01081 [the predecessor to section
627.409], which are applicable to all policies." Id....
...n due to material misrepresentation). As such, we conclude that an insurer's failure to rescind a policy in accordance with statutory cancellation procedures does not preclude or abrogate an insurer's ability to void the policy ab initio pursuant to section 627.409....
...CONCLUSION In concluding that United's only remedy was to cancel the policy prospectively under section
627.728, the trial court and the circuit court appellate division in its affirmance departed from the essential requirements of the law. First, rescission under section
627.409 for a material misrepresentation has been previously applied to statutorily mandated PIP policies....
...Nespereira,
366 So.2d 859, 861 (Fla. 3d DCA 1979). Here, the record establishes that Salgado provided United with grounds to rescind the policy. Moreover, because the Florida legislature has chosen not to exempt the Florida Motor Vehicle No-Fault Law from section
627.409, we further conclude that the trial court applied the incorrect law when it determined that the Florida Motor Vehicle No-Fault Law is in derogation of United's right to unilaterally rescind the policy ab initio based on the undisputed material misrepresentations contained in Salgado's application....
...3d DCA 1992) (holding the trial court applied the wrong version of Florida Rule of Criminal Procedure 3.191 and granting relief from a per curiam affirmance); Kneale v. Jay Ben Inc.,
527 So.2d 917 (Fla. 3d DCA 1988) (granting certiorari from per curiam affirmance of circuit court appellate division). [3] Specifically, section
627.409, Florida Statutes (2003), states:
627.409....
CopyCited 10 times | Published | District Court, S.D. Florida | 1987 U.S. Dist. LEXIS 13091, 1987 WL 34791
...In sum, even viewing the evidence in a light most favorable to the Plaintiff, the record evidence clearly shows that Mr. Brooks' application materially misrepresented both Mr. Brooks' longstanding smoking habit and his history of heart and lung disease. III. APPLICABLE LEGAL STANDARDS Fla.Stat. § 627.409(1) establishes the following criteria for an insured's entitlement to recovery under an insurance policy when the application for that policy has been shown to contain factual inaccuracies or omissions: 627.409....
...This bar on recovery applies even if the misrepresentation or omission was unintentional. Id. In reaching this holding, the Florida Supreme Court explicitly reaffirmed an earlier decision which attached the same meaning to Fla.Stat. § 627.01081, the identically worded predecessor to Fla.Stat. § 627.409(1)....
...Brooks was aware, at the very least, that he had experienced congestive heart failure in 1978. On these grounds alone we find that Mr. Brooks' misrepresentations and omissions on the application as to these illnesses render the policy unenforceable under Fla.Stat. 627.409(1)....
...ighly material to Mr. Brooks' eligibility for North American's Graduate Preferred life insurance policy was omitted from his application. We further find that Mr. Brooks' alleged illiteracy does not exempt Mr. Brooks from the provisions of Fla.Stat. 627.409(1), barring recovery when misrepresentations or omissions from an insurance application are found to be material to the insurer's acceptance of risk or when the insurer in good faith would not have issued the policy if the true facts had been divulged....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1999 WL 1015149
...urance contracts addressing avoidance of coverage for misrepresentation in an insurance application. See ch. 59-203, § 458, at 645-646, Laws of Fla.; § 627.01081, Fla. Stat. (1959). We conclude that the statute regulating misrepresentation, now at section 627.409, supplanted prior case law applying "continued insurability" clauses to misrepresentation cases. Section 627.409, Florida Statutes (1993), permits an insurer to avoid coverage if an application contains a "misrepresentation, omission, concealment, or statement [that] is fraudulent or is material either to the acceptance of the risk or to the haz...
...othing void as to public policy or statutory law about such a contract." Id. at 1390 (internal citations omitted). Parties are not free to create insurance contracts that conflict with state law. See Green,
704 So.2d at 1391 (citing Couch, § 17:2). Section
627.409 governs misrepresentation in the application....
...See Green. In those circumstances, a "continuing insurability" clause in the application may be construed as a condition precedent to coverage. Cf. Mathews v. Metropolitan Life Ins. Co.,
89 So.2d 641 (Fla.1956). [2] When this case is analyzed under section
627.409, numerous fact issues remain that preclude summary judgment. The first, of course, is whether the misrepresentations in the application were fraudulent or material to the risk or the hazard assumed. See §
627.409(1)(a); Anderson v....
...de. We also reject the circuit court's second basis for granting summary judgment, having to do with the damages available for fraud. This is not a tort action; it is a suit based on a contract. The issue of "fraud" appeared in the pleadings because section 627.409 permits rescission based on fraudulent misrepresentation....
...ation statute. That case appears to hold in favor of the insurer based on the statute alone. See
202 So.2d at 620 (stating "we reach the conclusion that the second portion of the appellee's defense [misrepresentation under the predecessor statute to section
627.409] has merit.").
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1997 Fla. App. LEXIS 3072, 1997 WL 137279
...Laura Steele drowned on 24 August 1986, about three months after the application was submitted. Steele submitted a claim which was denied by JNL on 24 November 1986 based on its contention that the application contained material misrepresentations. See § 627.409, Fla....
...Furthermore, we decline to extend Travelers Insurance Co. v. Quirk to the facts of the instant case. The other issues raised on appeal being moot or without merit, the final summary judgment in favor of JNL is affirmed. AFFIRMED. GRIFFIN, J., concurs. W. SHARP, J., concurs in result only. NOTES [1] Section 627.409 provides in part: 627.409 Representations in applications; warranties. (1) All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 23 Fla. L. Weekly 1724, 1998 Fla. App. LEXIS 8711, 1998 WL 399633
...formation material to the acceptance of the risk ... assumed ... and that had the [appellee] known the true facts, it would not have issued the policy or would have done so on different terms"; and that, as a matter of law, recovery was precluded by section 627.409, Florida Statutes (1987)....
...Old Line's answer admitted that it had issued the policy in question; denied all of the remaining material allegations of the amended complaint; and asserted several affirmative defenses, including that Frank had made misrepresentations on the application for insurance which were sufficient to bar recovery pursuant to section 627.409, Florida Statutes (1987)....
...ch were material to acceptance of the risk; that Old Line either would not have issued the policy, or would have issued it at a different rate, had it not relied on the misrepresentations and omissions; and that, therefore, recovery was precluded by section 627.409, Florida Statutes (1987)....
...e. Jack filed an affidavit in *1263 opposition to the motion for summary judgment. However, most of it would be inadmissible in evidence as conclusions, opinions or speculation. This appeal follows the trial court's order granting Old Line's motion. Section 627.409(1), Florida Statutes (1987), reads: All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties....
...nown to the insurer as required either by the application for the policy or contract or otherwise. As a general rule, a misstatement in, or omission from, an application for insurance need not be intentional before recovery may be denied pursuant to section 627.409....
...The two misrepresentations already discussed provide ample support for the trial court's decision. See de Guerrero v. John Hancock Mut. Life Ins. Co.,
522 So.2d 1032 (Fla. 3d DCA 1988) (affirming a summary judgment in favor of the insurer pursuant to section
627.409 when the undisputed evidence established that the insured made several misrepresentations on his application regarding his medical history, including failing to list recent consultations with his physician, and the undisputed affidavi...
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 10 Fla. L. Weekly 69
...Parkway General Hospital, Inc. v. Allstate Insurance Co.,
393 So.2d 1171 (Fla. 3d DCA 1981). Accord Kaufman v. A-1 Bus Lines, Inc.,
363 So.2d 61 (Fla. 3d DCA 1978). In the present case, the alleged defamatory letter states that there appears to be a violation of section
627.409, Florida Statutes (1981), and then proceeds to quote that section in its entirety....
...e must, we find plaintiff has adequately stated a cause of action for defamation. Accordingly, the order dismissing the defamation action is reversed and the cause remanded for further proceedings. NOTES [1] The letter quotes the statute as follows: 627.409 Representations in applications; warranties (1) All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties....
...act of insurance, endorsement, or application therefor, shall not render void the policy or contract, or constitute a defense to a loss thereon, unless such breach or violation increased the hazard by any means within the control of the insured. See § 627.409, Fla. Stat. (1981). This section was rewritten but substantively unchanged by the legislature in 1982. See § 627.409, Fla....
CopyCited 4 times | Published | District Court, S.D. Florida | 2016 U.S. Dist. LEXIS 130500, 2016 WL 5338077
...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. Fla. Stat. § 627.409 (1); see also Fresh Supermarket Foods, Inc....
...cy or which is wholly inconsistent with a forfeiture, will constitute a waiver thereof.” Johnson v. Life Ins. Co. of Ga.,
52 So.2d 813, 815 (Fla. 1951); see Wimberg v. Chandler,
986 F.Supp. 1447, 1455 (M.D. Fla. 1997) (finding waiver of Fla. Stat. §
627.409 where the insurer had the right to rescind the policy due to the insured’s material misrepresentation in his application, knew or should have known of the misrepresentation, and “waived its right to rescind the policy by renewing the p...
...dent, the alleged misrepresenta *1280 tions and/or omissions by Laboss and Singer were not material—though unfortunate and unnecessary—because Ward was then a covered driver. Further, the Court finds that Global waived its rescission claim under § 627.409 through its subsequent actions....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 13474
...t’s rulings.”). “Florida law ... gives an insurer the unilateral right to rescind its insurance policy on the basis of misrepresentation in the application of insurance.” Gonzalez v. Eagle Ins. Co.,
948 So.2d 1, 2 (Fla. 3d DCA 2006). Indeed, section
627.409, Florida Statutes, provides in pertinent part: (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 and is not a warranty....
...not have issued the policy or contract, would not have issued it at the sanie 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), Fla....
...(2007) (emphasis added); see also United Auto. Ins. Co. v. Salgado,
22 So.3d 594, 599 (Fla. 3d DCA 2009) (“[W]here a misstatement or omission materially affects the insurer’s risk, or would have changed the insurer’s decision whether to issue the policy and its terms, [section
627.409] may preclude recovery.”)....
...ed the policy under the same terms and premium, then rescission of the policy by the insurer is proper’” (emphasis added) (quoting N.Y. Life Ins. Co. v. Nespereira,
366 So.2d 859, 861 (Fla. 3d DCA 1979))). Thé determination of materiality under section
627.409(1)(a) is generally a question of law based on “an objective view of what is material.” Singer,
512 So.2d at 1129 (discussing an earlier version of section
627.409, but concluding that materiality in this context should be based on an objective standard); see also de Guerrero v....
...John Hancock Mut. Life Ins. Co.,
522 So.2d 1032, 1033 (Fla. 3d DCA 1988) (“Where the evidence is clear and uncon-tradicted the materiality of the misrepresentation shall be decided as a question of law.”). In contrast, the determination to be made under section
627.409(1)(b) regarding how an insurer would have acted had it known the true facts is “one of fact requiring testimony by the insurer’s representatives” that implicates “the subjective view of what a particular insurer would or would not have deemed material if it had known the true facts.” Singer,
512 So.2d at 1129 (discussing the earlier version of section
627.409 but concluding that this determination is subjective in nature and thus requires witness testimony)....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2005 WL 478385
...GRG further argues that even if question 19 is unambiguous, the trial court erred by granting summary judgment in favor of Lloyd's because genuine issues of material fact exist as to the materiality of the misrepresentation. Specifically, GRG argues that the strict standard set forth in section 627.409(1), Florida Statutes (2003), is inapplicable because the insurance application applies the less stringent "knowledge and belief" standard. Pursuant to section 627.409(1)(a) and (b), any misrepresentation, innocent or intentional, will void an insurance contract if the misrepresentation "is material either to the acceptance of the risk or to the hazard assumed by the insurer" or "[i]f the true facts...
...2d DCA 1989); Preferred Risk Life Ins. Co. v. Sande,
421 So.2d 566 (Fla. 5th DCA 1982). We agree with GRG that the less stringent "knowledge and belief" standard set forth in the insurance application controls over the strict standard set forth in section
627.409(1). See Green v. Life & Health of Am.,
704 So.2d 1386 (Fla.1998)(holding that where insurance application incorporates a "knowledge and belief" standard, the rigid statutory standard set forth in section
627.409(1) is inapplicable); Gainsco v....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 11577, 2015 WL 4577340
...ed” has: a. Intentionally concealed or misrepresented any material fact or circumstance; b. Engaged in fraudulent conduct; or c. Made false statements; relating to this insurance. Id. The Johnson court held that, “under the policy here and under section 627.409(1), [Florida Statutes,] a misrepresentation ‘need not be fraudulent or knowingly made but need only affect the insurer’s risk or be a fact which, if known, would have caused the insurer not to issue the policy or not to issue it in so large an amount.’ ” Id....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2003 Fla. App. LEXIS 11386, 2003 WL 21729253
...(hereafter ChoicePoint), on Gainsco's claim against ChoicePoint for recovery of insurance proceeds paid by Gainsco to its insured, Fred Stringfellow, due to a fire loss. We conclude that the trial court's ruling below was based upon a misinterpretation of the effect of section 627.409(1), Florida Statutes, and that there are disputed issues of material fact that preclude summary judgment for appellee....
...in maintaining coverage under the policy. In entering the summary judgment below the trial court determined that because the property owner failed to list the nightclub as one of the businesses occupying the insured building the case is governed by section 627.409(1), Florida Statutes....
...Finding that appellant would not have issued the policy if the nightclub had been listed in the application, the court concluded that appellant could have avoided payment under the policy by invoking the insured's omission or misrepresentation as an absolute defense under section 627.409(1)....
...A summary judgment is appropriate only when it is conclusively shown that there is no disputed issue as to any material fact; and in applying this standard the court must draw every possible inference against the moving party. See e.g., Green v. CSX Transportation,
626 So.2d 974 (Fla. 1st DCA 1993). And although section
627.409(1) might otherwise be invoked as above noted to avoid coverage based upon an intentional misrepresentation which falls within the statute, see Bleasdell v....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 2515, 2011 WL 680282
...(2007) (providing coverage for uninsured subcontractors). The JCC further concluded that, because of the Employer's multiple material misrepresentations relating to *156 the nature of his business and his business activities, the Zenith policy was void ab initio under section 627.409(1)(a), Florida Statutes (2007), thereby precluding Claimant from recovering benefits under the policy....
...voidance of an insurance policy is not present. Acknowledging chapter 440 does not contain the remedy afforded by the JCC here, Zenith argues that the JCC was obliged to seek a remedy outside of chapter 440, specifically the denial of recovery under section 627.409(1)(a), Florida Statutes (2007), because it is otherwise without remedy for the harm incurred....
...stent with the legislative intent manifested in chapter 440, but also in accord with our holding in Perkins. Zenith asks this court, however, to disregard or distinguish Perkins, so as to permit a workers' compensation carrier to obtain remedy under section 627.409(1) and retroactively avoid its responsibility to provide benefits to an employee, because of an employer's misrepresentations in the application or negotiations for a policy of *162 insurance. In Perkins, we concluded that a JCC erred "as a matter of law" in applying section 627.409(1), so as to deny workers' compensation benefits to an employee based on employer-fraud because "the Legislature has addressed the problem of employer misrepresentations and has provided a specific remedy for a carrier, against an emp...
...ntitled based on his status as an employee. We make no determinations as to the Employer's liability to Zenith, other than to state, under these facts, such causes are not actionable before the JCC. BENTON, C.J., AND WETHERELL, J., concur. NOTES [1] Section 627.409(1)(a), Florida Statutes (2007), the provision of the general Insurance Code on which Zenith relies, pertains to misrepresentations made in the application or in the negotiations for a policy. If, indeed, the Employer was forthright in his application and negotiation for the policy of insurance (as posited by Zenith), it is not clear how section 627.409(1)(a) would apply to the facts of this case....
CopyCited 3 times | Published | District Court, M.D. Florida | 2001 U.S. Dist. LEXIS 16796, 2001 WL 1426634
...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), Fla....
...The court stated: As did the court in Sands,
912 F.2d 1359, we conclude that under the "knowledge and belief" standard set out in the insurance application, the deceased insured here has not been shown to have incorrectly answered the question posed as contemplated by section
627.409....
...[W]e cannot ignore the fact that Life & Health chose to draft and incorporate a different "knowledge and belief" standard in its application, thereby bypassing the rigid statutory standard.... In the final analysis, this contract, by its own terms, established a lesser knowledge standard than that required by section 627.409....
...d were infected with HIV at the time of the applications. The insurance company repudiated the policies and refused to pay death benefits when one of the applicants died. The district court granted summary judgment for the insurance company based on § 627.409(1), Fla....
...and concealment, it cannot rely on a statute that imposes more stringent requirements on an insured.'... The `knowledge and belief' language used by Penn Life in its application forms imposed a different requirement of accuracy than that provided in section 627.409." The court also adopted the test of Skinner v....
...In fact, he had been convicted of two (2) felonies just a little more than a year prior to applying for the life insurance. At that time, Walker had been sentenced to 364 days of incarceration and had served jail time on those convictions (Docket Nos. 15 and 19, Exs. E and F to MSJ). Under § 627.409(1), Fla....
CopyCited 2 times | Published | Court of Appeals for the Eleventh Circuit
...s a material fact in a loan application, which misrepresentation is transmitted as part of an application for insurance, the risk of loss from the loan is placed on the bank rather than the bank’s insurer. After noting that the question of whether § 627.409 applied to mortgage guaranty insurance policies prior to October 1, 1983 was unsettled, the district judge concluded that § 627.409 did apply to these two certificates of insurance. FDIC challenges the district court’s application of § 627.409 in this appeal....
...First, FDIC contends that the district court erred in determining that the misrepresentations made by the borrowers could be imputed to Sunrise. Second, FDIC asserts that imputation of the borrowers’ misrepresentations to FDIC contravenes federal common law. Finally, FDIC claims that § 627.409 did not apply to mortgage guaranty insurance prior to October 1, 1983, and thus did not operate to invalidate the two certificates of insurance at issue in this case....
...epresentations, the applications for certificates of insurance submitted by *394 Sunrise to Verex made no misrepresentations. The lack of a material misrepresentation by Sunrise is important because in order to avoid the insurance certificates under section 627.409, Verex must show that Sunrise made a material misrepresentation in its application for insurance....
...Further, no substantial interest of justice is at stake, as these interests are “generally equated with the vindication of fundamental constitutional rights.” Daikin,
868 F.2d at 107 . Therefore, we decline to consider FDIC’s late-breaking D’Oench, Duhme argument. C. Application of Fla.Stat. §
627.409 The remaining question to be resolved is whether Fla.Stat. §
627.409 applies to these certificates of insurance. As noted above §
627.409 protects an insurer from material misrepresentations in an application for insurance, even those innocently made by the insured. Therefore, if §
627.409 applies in this case, Verex can rescind the certificates it issued based on the material misrepresentations contained in the borrowers’ loan documents which are imputed to Sunrise by virtue of our foregoing analysis. The question of whether §
627.409 applied to mortgage guaranty insurance at the time these certificates were issued is an unresolved question of Florida law....
...It involves a question of Florida law which is determinative of the cause, but unanswered by controlling precedent of the Supreme Court of Florida. We therefore certify this question for resolution by the highest court of Florida. The question remaining in this appeal is whether Fla.Stat. § 627.409 applies to these certificates of insurance. This section protects an insurer from material misrepresentations in an application for insurance, even those innocently made by the insured. Therefore, if § 627.409 applies in this case, Verex can rescind the certificates it issued based on the material misrepresentations contained in the borrowers’ loan documents which we find to be imputed to Sunrise....
...The uncertainty arises from the Florida statutory scheme covering insurance. Since 1959, mortgage guaranty insurers, like Verex, have been governed by Florida Statutes Chapter 635, titled Mortgage Guaranty Insurance. Chapter 635 does not include a section, like § 627.409, that protects moi’tgage guaranty insurers from material misrepresentations made by insureds. Nevertheless, the absence of an analog to § 627.409 had little significance for years because courts extended the protection of § 627.409 to mortgage guaranty insurers....
...In Home Guaranty Ins. Corp. v. Numerica Financial Services, Inc.,
835 F.2d 1354 (11th Cir.1988), this Court held that § 627.-409 does not apply to mortgage guaranty insurance contracts formed after October 1, 1983, because §
635.091 did not expressly incorporate §
627.409....
...and Verex would be required to bear the loss associated with the material misrepresentations. The certificates of insurance involved in this case, however, were issued before the effective date of §
635.091 on October 1, 1983. The issue of whether §
627.409 applied to mortgage guaranty insurance before October 1, 1983 has not been directly considered subsequent to our decision in Numérica and the enactment of §
635.091. Therefore, as the district court recognized, we are faced with a question of first impression: Did the Florida legislature enact §
635.091 to clarify that §
627.409 does not apply to mortgage guaranty insurance, or was §
635.091 enacted to repeal, by implication, the application of §
627.409 to mortgage guaranty insurance? Lamenting its lack of authority to certify questions of Florida law to the Florida Supreme Court, the district court decided this *397 novel question and concluded that §
627.409 did apply to mortgage guaranty insurance prior to the enactment of §
635.091....
...We set forth the following non-exhaustive review of the contentions of the parties which may assist the Florida Supreme Court in its consideration of this issue. FDIC argues that the statutory scheme in place at the time §
635.091 became effective indicates that the Florida legislature intended merely to clarify that §
627.409 never applied to mortgage guaranty insurance, rather than work a substantive change through §
635.091....
...In sum, FDIC argues that the legislative history supports its position that by enacting §
635.091, no substantive change occurred in Florida law governing mortgage guaranty insurance policies. Verex contends that the district court correctly determined that prior to the enactment of §
635.091, §
627.409 applied to mortgage guaranty insurance....
...Verex identifies several relevant provisions of the Florida Statutes to bolster its assertion. First, Ve-rex notes that mortgage guaranty insurance is defined as a form of casualty and surety insurance in section
635.011, Fla.Stat. (1991), and avers that the scope of protection provided by §
627.409 covers many types of insurance, including casualty and surety insurance. Specifically, section
627.401 5 defines the scope of Chapter 627, Part II, which contains §
627.409, by excluding from its regulations certain types of insurance contracts. Noting the absence of mortgage guaranty insurance from this list of exclusions, Verex argues that finding that §
627.409 did not apply to mortgage guaranty insurance prior to the enactment of §
635.091 would effectively rewrite §
627.401 to create a new exclusion for this type of insurance from the requirements imposed by Chapter 627, Part II....
...f the Insurance Code. This legislative history shows that mortgage guaranty insurance is not governed exclusively by Chapter 635, Verex contends. Thus, Verex argues that the enactment of §
635.091 in 1983 was an implied repeal of the application of §
627.409 to mortgage guaranty insurance, according to this Court’s opinion in Numéri-ca, rather than a mere technical clarification of those provisions of the Insurance Code made applicable to mortgage guaranty insurance by incorporation into Chapter 635....
...We merely recite these contentions to show that this question appears to be unresolved by Florida law, and thus, the issue is appropriate for certification to and resolution by the Supreme Court of Florida. We therefore certify the following question: Did Fla.Stat. § 627.409 apply to applications for and contracts of mortgage guaranty insurance prior to the enactment of Fla.Stat....
...The Court is at liberty to consider the problems and issues involved in this case as it perceives them to be. To assist consideration of the case, the entire record, along with the briefs of the parties, shall be transmitted to the Supreme Court of Florida. . Section 627.409 provides, in pertinent part, as follows: (1) All Statements and descriptions in any application for an insurance policy or annuity contract ......
...§
627.401 (1983), titled "Scope of this part,” provides: No provision of this part of this Chapter applies to: (1) Reinsurance. (2) Policies or contracts not issued for delivery in this state nor delivered in this state, except as otherwise provided in this code. (3) Wet marine and transportation insurance, except §§
627.409,
627.420, and
627.428....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1997 WL 163017
...een had kidney failure or suggest kidney dialysis. According to his son, Green's various physicians told him only that he had slow kidneys or small kidneys. The trial court entered summary final judgment in favor of Life & Health finding that, under section 627.409, Florida Statutes (1993), an insurance company has the right to deny coverage "based upon any misrepresentation materially affecting risk, even if such misrepresentation was made in good faith." The relevant portions of section 627.409, Florida Statutes (1993), are as follows: Representations in applications; warranties (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 i...
...The issue according to the statute, then, is not whether the applicant intentionally gives misinformation, but whether said information materially affects the risk. In Continental Assurance Co. v. Carroll,
485 So.2d 406, 409 (Fla.1986), the supreme court considered section
627.409 and held that "[t]he plain meaning of the statute indicates that, where either an insurer would have altered the policy's terms had it known the true facts or the misstatement materially affects risk, an unintentional misstatement in...
...was therefore unintentional. Nevertheless, we acknowledge the line of cases from the Eleventh Circuit which hold that "knowledge and belief" language in a contract drafted by the insurer imposes a different standard of accuracy than that provided in section 627.409(1)....
...1st DCA 1996)(summary judgment in favor of insurer reversed because material fact issues existed as to whether insured's answers on application were material misstatements under "knowledge and belief" standard). Therefore, while we affirm the trial court's grant of summary judgment in favor of Life & Health based upon section 627.409, Florida Statutes (1993), we certify conflict with the First District's holding in Carter....
...acceptance of risk will invalidate an insurance policy, even if made in good faith. The only issue in Carroll was whether the presence of good faith in answering the application questions could create an exception to the bar to recovery set forth in section 627.409. See § 627.409, Fla....
...Carroll was unaware of the heart murmur when she completed the application. In William Penn Life Insurance Co. v. Sands,
912 F.2d 1359 (11th Cir.1990), the eleventh circuit addressed the same argument made here by Life & Health that the supreme court's decision in Carroll foreclosed an exception to section
627.409 based on "best knowledge and belief" provisions: The suggestion that "knowledge and belief" language is irrelevant to the interpretation of an insurance form is not only illogical but is not supported by Carroll `s narrow holding....
...t an insured's truthful response to a question based on his "knowledge and belief" cannot be considered a misstatement or misrepresentation in an insurance policy rescission action. Id. at 1360. The eleventh circuit, without doing violence to either section 627.409 or the result in Carroll, reasoned that the application's qualifying language that answers were to be true to the insured's best knowledge and belief: had the effect of shifting the focus, in a determination of the truth or falsity of...
...Sahlen,
999 F.2d 1532 (11th Cir.1993), by holding that the "knowledge and belief" provision used by the insurer in the policy application "establishes a less stringent standard for determination of misrepresentations, *224 omissions, concealment of facts, and incorrect statements than the standard authorized by section
627.409(1)." Carter,
685 So.2d at 6-7. The majority holds that the focus of section
627.409 is not on whether the applicant intentionally gives misinformation but on whether said information materially affects the risk. However, this ignores the principle that policy language chosen by the insurer controls over any contrary provision in section
627.409. See Carter,
685 So.2d at 6 (citing Strickland Imports v. Underwriters at Lloyds, London,
668 So.2d 251, 253 (Fla. 1st DCA 1996)). The holdings of Carter and Sands are consistent with the language of section
627.409, which allows rescission by the insurer only where the insurer in good faith would not have issued the same policy had "the true facts ... been known to the insurer pursuant to a policy requirement or other requirement. " §
627.409(1)(b) (emphasis supplied). I urge our supreme court to adopt the holdings of the first district in Carter and the eleventh circuit in Sands that a "knowledge and belief" qualifier in an insurance application imposes a less stringent standard than that provided in section
627.409....
CopyCited 1 times | Published | District Court, S.D. Florida | 2016 U.S. Dist. LEXIS 69207, 2016 WL 3017213
...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. Fla. Stat. § 627.409 (1)....
...licy or which is' wholly inconsistent with a forfeiture, will constitute a waiver thereof.” Johnson v. Life Ins. Co. of Ga.,
52 So.2d 813, 815 (Fla.1951); see Wimberg v. Chandler,
986 F.Supp. 1447, 1455 (M.D.Fla.1997) (finding waiver of Fla. Stat. §
627.409 where' the insurer- had the right to rescind the policy due to the insured’s material misrepresentation in- his application, knew or should have known of the misrepresentation, and “waived its right to rescind the policy by renewing th...
...As Ward was a lawful and permissive driver under the Policy at the time of the accident, the alleged misrepresentations and/or omissions by Laboss and Singer were not material—though unfortunate and unnecessary—because Ward was then a covered driver. Further, the Court finds that Global waived its rescission claim under § 627.409 through its subsequent actions....
CopyCited 1 times | Published | District Court of Appeal of Florida | 2016 Fla. App. LEXIS 9231, 2016 WL 3265750
...presence of a central monitored alarm system for smoke, temperature and burglary were material as a matter of law to the issuance of Lloyd’s insurance policy. As such, recovery for the Jimenez’s house fire was unwarranted. *601 Florida- Statute section 627.409(1) provides that misrepresentations, -omissions, concealment of facts, and incorrect statements on an insurance application will not prevent a recovery under the policy unless they are either: (1) fraudulent; (2) material to the risk being assumed; -or (3)....
...the insurer in good faith either would not have issued, the policy or would have done so only on different terms had the insurer known the true facts. Lloyd’s relies on (2) and (3) in claiming that the Jimenez’s central monitored system, statements in their application prevent recovery under the policy in question, See § 627.409(1), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 812, 2015 WL 292007
...Luis and Rosaura Mora appeal a final summary judgment entered in favor
of Tower Hill Prime Insurance Company. The judgment rescinded their homeowners
insurance policy based on the theory that the Moras had misrepresented the condition
of their home in violation of section 627.409, Florida Statutes (2007), when they
submitted their applications for the coverage....
...se at the
time of purchase seven years earlier.
Based only on this evidence, the trial court granted summary judgment in
favor of Tower Hill declaring the homeowners policy void. The Moras appeal that
summary judgment.
Section 627.409 allows an insurer to forfeit coverage when an insured
makes certain misrepresentations....
...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)(a)-(b).
-4-
The statute allows a policy to be forfeited under at least two distinctly
different circumstances....
...misrepresentation is "material
to the acceptance of the risk" or "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." See § 627.409(1)(a), (b).2 It is well established
that in these instances a misrepresentation need not be knowingly made in order for the
insurer to void the policy....
...1951), and Travelers Protective Ass'n of Am. v. Jones,
91 F.2d
2
In most, if not all, circumstances in which disclosure of the "true facts"
would have led the insurer in good faith not to issue the policy—satisfying subsection
627.409(1)(b)—the insured's misrepresentation would also be "material to the
acceptance of the risk" under subsection (1)(a)....
...that the insured's
statement is a misrepresentation, that it is material, and that the insurer detrimentally
relied on it. See Griffin,
752 So. 2d at 623 (citing Douglas v. Mut. Life Ins. Co. of N.Y.,
191 So. 2d 483 (Fla. 2d DCA 1966)). Under subsection
627.409(1)(b), the insurer
needs to provide an explanation as to why "in good faith" and "pursuant to a policy
requirement or other requirement" it would not have issued the policy or would not have
issued it under the same terms....
...Moras made a
misrepresentation on their applications when they indicated that they were unaware of
any prior repairs for "cracking damage" on their home.
As to the second deficiency, on this record the "true facts" for purposes of
section 627.409 are nothing more than facts that the house had drywall, stucco, and
other cracks that were resolved without complication by the builder before the sale to
the Moras in 2005....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...affirmative
defense asserting that Appellant’s misrepresentation “regarding the identity of the
owner of the auto she was attempting to insure under said policy” entitled it “to
revoke and/or cancel the contract of insurance pursuant to F.S. 627.409,” which it
did pursuant to the notice provided in the aforementioned letter and its refund of
3
Appellant’s premium payments....
...o found
that Appellant’s “misrepresentations were material to the risk being assumed by
[MGA] and were relied upon by [MGA] in deciding whether the policy of
insurance should have been issued,” thus, rescission was appropriate pursuant, to
section 627.409(1)(a), (b), Florida Statutes, and case law.
Addressing Appellant’s waiver and confession of judgment arguments, the
court found that Appellant had “no standing to bring suit for [PIP] benefits under
the policy as she assi...
...5
Waiver, Confession of Judgment, and Appellant’s Standing
We agree with the trial court’s finding that Appellant made material
misrepresentations in the insurance application, warranting rescission pursuant to
section 627.409(1)(a), (b), Florida Statutes....
...onsistent with the
rescission. We disagree.
6
Simply because MGA deemed the contract void because of Appellant’s
alleged misrepresentation does not mean the contract never existed. Pursuant to
section 627.409(1), Florida Statutes, an insured’s material misrepresentation “may
prevent recovery under the contract or policy” if certain conditions exist....
...titute a waiver thereof.” Johnson v. Life
Ins. Co. of Ga.,
52 So. 2d 813, 815 (Fla. 1951). Furthermore, in United Services
Automobile Association v. Clarke, the court acknowledged that an insurer can
waive its right to void a policy pursuant to section
627.409, but found that the
carrier in that case had not done so....
...3d 1079, 1081 (Fla. 4th DCA 2009)).
Here, although Appellant may have lacked standing to sue for payment of
PIP benefits under the policy by her assignment of those benefits, MGA took the
position that it had no obligations at all under the policy, based on section
627.409(1), Florida Statutes....
CopyPublished | Court of Appeals for the Eleventh Circuit | 1993 WL 313361
...1 In August, 1991, National Union terminated the Interim Funding Agreement and informed the Insureds that it would cease payment under the policy as of September 3. National Union based its claim for rescission on the following provision of Florida law, Fla.Stat. § 627.409(1): (1) All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties....
...rge an amount, or would not have provided coverage with respect to the hazard result *1535 ing in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise. Fla.Stat. § 627.409(1) (1989)....
...It is undisputed that the financial statements attached to the policy application were inaccurate, reflecting, as they did, fictional accounts receivable. Petitioners assert, however, that inaccuracies in financial statements attached to a policy application are not “statements” within the meaning of Fla.Stat. § 627.409....
...e coverage. They were part and parcel of the completed application and the district court correctly found that indisputably inaccurate figures in them were “statements and descriptions in [an] application for an insurance policy” under Fla.Stat. § 627.409....
...Misrepresentations and incorrect statements in a policy application bar recovery under the policy where, inter alia, they are material to the risk assumed by the insurer or the insurer would not have offered the same terms had it known the truth. Fla.Stat. § 627.409(1)(b) & (c)....
...Given that the documents attached to the policy application incontrovertibly contained misstatements and that these misstatements were material to the risk assumed by National Union and the insurer’s decision to provide coverage, the district court properly found the policy void under Fla.Stat. § 627.409....
...Bank of Savannah, N.A.,
859 F.2d 865 , 870 (11th Cir.1988), and we have reversed a grant of summary judgment where the court failed to rule on a discovery motion. Fernandez, supra, at 571 . However, the absence of factual disputes material to the application of Fla.Stat. §
627.409 in this case persuades us that the district court did not err in granting National Union’s summary judgment motion prior to ruling on Pledger’s motion to compel....
...r further proceedings. . National Union prepared a complaint in May, 1990, but found its claim barred by the bankruptcy stay. National Union secured relief from the stay and then filed an amended complaint. . In 1992, the Florida legislature rewrote section 627.409. See Fla.Stat. § 627.409 (1992 supp.)....
...granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court. 28 U.S.C. § 1292 (a)(1) (West 1993 supp.). . In ’William Penn, while affirming the absence of an intent clement in Fla.Stat. § 627.409(1), we concluded that the policy at issue was not void because the parties had contracted for coverage more beneficial to the insureds than required by the Florida statute....
CopyPublished | Court of Appeals for the Eleventh Circuit | 1988 WL 91334
...As discussed above, the district court held that the clauses conflicted and that the cover letter clause controlled. We affirm the district court’s conclusion that the insurance was in effect when the vessel sank, but we do so on different grounds. 4 The parties stipulated that Florida substantive law applies. Section 627.409(2) of the Florida Insurance Code provides that: (2) A breach or a violation by the insured of any warranty, condition, or provision of any wet marine or transportation insurance policy, contract of insurance, endorsement, or applicati...
...5 In addition, its failure to notify the underwriters obviously played no part in causing the loss. Thus, requiring American Centennial to pay its share of the coverage despite the breach of the notification provision fully accords with the purpose of §
627.409(2) as that statute is interpreted by the Florida courts. See id. Therefore, pursuant to the provisions of §
627.409(2) of the Florida Insurance Code, we hold that American Centennial is precluded from denying coverage to Windward solely because Windward failed to notify them of the vessel’s location. American Centennial urges that §
627.409(2) does not apply because the insurance policy was not delivered or issued for delivery in Florida. American Centennial points out that §
627.401(2) of the Florida Insurance Code states that the provisions of the Insurance Code (including §
627.409(2)) do not apply to “policies or contracts not issued for delivery in this state nor delivered in this state.......
...In other words, the parties cannot stipulate that the place of delivery and issue of the policy is different from what it actually was. 7 American Centennial also challenges the award of $22,000 attorney’s fees to Windward for the same reason that it challenged the application of § 627.409(2), namely that because of the New York Suable Clause, the policy was not issued for delivery or delivered in Florida....
...lled. . It might be argued that a breach of the trading (locality) warranty — e.g. operating the vessel off the coast of Portugal, rather than in Caribbean waters — may have "increased the hazard by any means within the control of [Windward].” Section 627.409(2)....
CopyPublished | Florida 4th District Court of Appeal
...However, after Insured filed a claim for
new damage, Insurer’s inspector found signs of pre-existing damage and
repairs. Insurer denied Insured’s claim but continued to collect premiums
from him for several years. Insured then sued for breach of contract, and
Insurer asserted an affirmative defense based on section 627.409, Florida
Statutes (2019)....
...r the
contract or policy only if any of the following apply:
(a) The misrepresentation, omission, concealment, or
statement is fraudulent or is material to the acceptance of the
risk or to the hazard assumed by the insurer.
§ 627.409(1)(a), Fla....
...misrepresented any material fact or circumstance; (2) [e]ngaged in fraudulent
conduct; or (3) [m]ade material false statements; relating to this insurance.”
Insurer later moved for dismissal based on fraud on the court or, in the
alternative, for summary judgment pursuant to section 627.409 based on
material misrepresentations....
...Insured instead argued Insurer could not claim rescission as
an affirmative defense because Insurer had continued to collect premiums
from him for approximately two years after learning of the prior
undisclosed claim. Insurer contended it sought only to deny coverage
under section 627.409 and not to rescind the policy.
The trial court held that no genuine issue of material fact existed as to
whether Insured’s failure to disclose the prior claim on his policy
application or in discovery amounted to material misrepresentations such
that the claim could be denied under the policy provisions and section
627.409. While section 627.409 provides that an insurer may seek
rescission of a policy, the plain language of the statute alternatively allows
for an insurance provider to deny coverage of an individual claim....
CopyPublished | Supreme Court of Florida | 19 Fla. L. Weekly Supp. 593, 1994 Fla. LEXIS 1813
...FDIC raised three issues on appeal to the United States Court of Appeals for the Eleventh Circuit. The Circuit Court of Appeals ruled in favor of Verex on two of the issues, which are of no concern here. However, the final issue— whether Verex can rely on section 627.409, Florida Statutes (Supp.1982), 1 to prevent recovery under the two certificates of insurance — hinges on an unresolved question of Florida law which the Eleventh Circuit certified to this Court for resolution, pursuant to article V, section 3(b)(6) of the Florida Constitution. 2 The question that we are asked to resolve is: Did Fla.Stat. § 627.409 apply to applications for and contracts of mortgage guaranty insurance prior to the enactment of Fla.Stat....
...The district court entered summary judgment in favor of Verex. It held that the certificates of insurance were void because of the material misrepresentations contained within the application packages submitted to Verex by Sunrise. In reaching this decision, the district court concluded that section
627.409 of the Florida Statutes (1991) undisputedly provides that when a borrower misrepresents a material fact in a loan application, which misrepresentation is transmitted as part of an application for insurance, the risk of loss from the loan is placed on the bank rather than the bank’s insurer. After noting that the question of whether §
627.409 applied to mortgage guaranty insurance policies prior to October 1, 1983 was unsettled, the district judge concluded that §
627.409 did apply to these two certificates of insurance. FDIC challenges the district court’s application of §
627.409 in this appeal.
3 F.3d at 392-93 (footnote omitted). The Eleventh Circuit explains the issue for our consideration as follows: The question remaining in this appeal is whether Fla.Stat. §
627.409 applies to these certificates of insurance. This section protects an insurer from material misrepresentations in an application for insurance, even those innocently made by the insured. Therefore, if §
627.409 applies in this case, Verex can rescind the certificates it issued based on the material misrepresentations contained in the borrowers’ loan documents which we find to be imputed to Sunrise....
...The uncertainty arises from the Florida statutory scheme covering insurance. Since 1959, mortgage guaranty insurers, like Verex, have been governed by Florida Statutes Chapter 635, titled Mortgage Guaranty Insurance. Chapter 635 does not include a section, like § 627.409, that protects mortgage guaranty insurers from material misrepresentations made by insureds. Nevertheless, the absence of an analog to § 627.409 had little significance for years because, courts extended the protection of § 627.409 to mortgage guaranty insurers....
...mortgage guaranty insurers; chapter 624; chapter 625; parts I, II, VIH, and X of chapter 626; s.
627.915; chapter 628; and chapter 631. Section
635.091 explicitly sets forth those parts of the Insurance Code applicable to mortgage guaranty insurers. Section
627.409 does not appear on the list of provisions expressly incorporated into Chapter 635. In Home Guaranty Ins. Corp. v. Numerica Financial Services, Inc.,
835 F.2d 1354 (11th Cir.1988), this Court held that §
627.409 does not apply to mortgage guaranty insurance contracts formed after October 1, 1983, because §
635.091 did not expressly incorporate §
627.409....
...and Verex would be required to bear the loss associated with the material misrepresentations. The certificates of insurance involved in this case, however, were issued before the effective date of §
635.091 on October 1, 1983. The issue of whether §
627.409 applied to mortgage guaranty insurance before October 1, 1983 has not been directly considered subsequent to our decision in Numeric a and the enactment of §
635.091. Therefore, as the district coui't recognized, we are faced with a question of first impression: Did the Floi’ida legislature enact §
635.091 to clai’ify that §
627.409 does not apply to mortgage guaranty insurance, or was §
635.091 enacted to repeal, by implication, the application of §
627.409 to moi*tgage guaranty insui'ance?
3 F.3d at 396 . The Circuit Coui't succinctly sets forth the arguments of the parties as follows: FDIC argues that the statutory scheme in place at the time §
635.091 became effective indicates that the Florida legislature intended merely to clarify that §
627.409 never applied to mortgage guaranty insurance, rather than work a substantive change through §
635.091....
...As noted by Verex, section
635.011, Florida Statutes (1981), defines mortgage guaranty insurance as a form of casualty or surety insurance. Casualty and surety insurance are two of the many types of insurance covered by Chapter 627, Part II, which contains section
627.409....
...Thus, because neither casualty, surety, nor mortgage guaranty insurance is among the types of insurance that are excluded from the scope of chapter 627, Part II by section
627.401, we can assume that at least until October 1, 1983 the legislature intended section
627.409 to apply to mortgage guaranty insurance. 3 Accordingly, we answer the certified question in the affirmative and return the cause to the Eleventh Circuit for further proceedings. It is so ordered. GRIMES, C.J., and OVERTON, SHAW, HARDING, WELLS and ANSTEAD, JJ., concur. . Section
627.409, Florida Statutes (Supp.1982), provides, in pertinent part: (1) All statements and descriptions in any application for an insurance policy or annuity contract ......
...In sum, FDIC argues that the legislative history supports its position that by enacting §
635.091, no substantive change occurred in Florida law governing mortgage guaranty insurance policies. • Verex contends that the district court correctly determined that prior to the enactment of §
635.091, §
627.409 applied to mortgage guaranty insurance....
...Verex identifies several relevant provisions of the Florida Statutes.to bolster its assertion. First, Verex notes that mortgage guaranty insurance is defined as a form of casualty and surety insurance in section
635.011, Fla.Stat. (1991), and. avers that the scope of protection provided by §
627.409 covers many types of insurance, including casualty and surety insurance. Specifically, section
627.401 [ FN5 ] defines the scope of Chapter 627, Part II, which contains §
627.409, by excluding from its regulations certain types of insurance contracts. Noting the absence of mortgage guaranty insurance from this list of exclusions, Verex argues that finding that §
627.409 did not apply to mortgage guaranty insurance prior to the enactment of §
635.091 would effectively rewrite §
627.401 to create a new exclusion for this type of insurance from the requirements imposed by Chapter 627, Part II....
...§
627.401 (1983), titled "Scope of this part,” provides: No provision of this part of this Chapter applies to: (1) Reinsurance. (2) Policies or contracts not issued for delivery in this state nor delivered in this state, except as otherwise provided in this code. (3) Wet marine and transportation insurance, except §§
627.409,
627.420, and
627.428....
...f the Insurance Code. This legislative history shows that mortgage guaranty insurance is not governed exclusively by Chapter 635, Verex contends. Thus, Verex argues that the enactment of §
635.091 in 1983 was an implied repeal of the application of §
627.409 to mortgage guaranty insurance, according to this Court’s opinion in Numérica, rather than a mere technical clarification of those provisions of the Insurance Code made applicable to mortgage guaranty insurance by incorporation into Chapter 635....
...e guaranty insurers and their agents and imposes limitations on mortgage guaranty insurance in addition to the provisions of the Insurance Code applicable to casualty and surety insurers. . The legislature recently amended section
635.091 to include section
627.409 among the provisions of the Florida Insurance Code that apply to mortgage guaranty insurance....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 2635, 1989 Fla. App. LEXIS 6401, 1989 WL 152678
final judgment, which we have affirmed, tracks section 627.-409(l)(c), Florida Statutes (1987), the applicability
CopyPublished | Court of Appeals for the Eleventh Circuit
...is unrelated to the loss. Ocean Reef countered that Florida’s so-called “anti-
technical statute” should instead apply, and that under that statute the breaches did
not preclude coverage because they were unrelated to the loss. See Fla. Stat. §
627.409(2) (“A breach ....
...rule in the United States requiring strict compliance with warranties in marine
insurance policies, we do not think we can rely on DeHahn today as authority for
such a rule with respect to crew warranties.
All of this means that Florida law, specifically Fla. Stat. §
627.409(2), governs
the effect of Ocean Reef’s breaches of the captain and crew warranties. On remand,
the district court will need to apply §
627.409(2), and consider any other related
arguments raised by the parties. See generally Pickett v. Woods,
404 So.2d 1152,
1153 (Fla. App. 1981) (explaining that §
627.409(2) was “designed to prevent the
insurer from avoiding coverage on a technical omission playing no part in the loss”);
Eastern Ins. Co. v. Austin,
396 So. 2d 823, 824-25 (Fla. App. 1981) (concluding that
19
USCA11 Case: 19-13690 Date Filed: 05/06/2021 Page: 20 of 22
the term “hazard” in §
627.409(2) “refer[s] to danger to the insured vessel itself”).
It appears that, under Florida law, the burden of proving a breach and “a resulting
increase of the hazard” is on the insurer....
CopyPublished | District Court of Appeal of Florida
recission of a commercial automobile policy under section
627.409, Florida Statutes. In the alternative, Petitioner’s
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Dec 16, 2022
...“How-
ever, unlike New York and the majority of states, Florida does not require
strict compliance with all warranties, but it does preclude recovery where the
‘breach or violation increased the hazard by any means within the control of
the insured.’” Id. at 32 (quoting Fla. Stat. § 627.409(2)).
USCA11 Case: 21-14509 Document: 38-1 Date Filed: 06/23/2023 Page: 4 of 30
4 Opinion of the Court 21-14509
choice-of-law analysis favored applying Florida law rather than
New York law....
...did not preclude coverage. Under Florida law, an insured remains
covered for an accident despite violating a policy warranty, unless
the violation “increased the hazard by any means within the con-
trol of the insured.” Fla. Stat. § 627.409(2).
On cross-motions for summary judgment, the District
Court granted summary judgment for Travelers, agreeing with it
that federal law applied, and that Ocean Reef therefore forfeited its
insurance coverage....
...a full-time captain “play[ed] [a] part in the loss” under Florida’s anti-
technical statute. 3 Id. at 1170 (quoting parenthetically Pickett v.
Woods,
404 So. 2d 1152, 1153 (Fla. 5th Dist. Ct. App. 1981)).
3Florida Statute §
627.409(2) is a “so-called ‘anti-technical statute.’” Travelers,
996 F.3d at 1164....
...of
th[e] Declination.”
* * *
As indicated supra, Travelers likely engaged in a strategy to
avoid the application of Florida’s anti-technical statute, Fla. Stat.
§ 627.409(2)....
...exactly the risk a competent captain
would have recognized and sought to avoid by moving the vessel.”
* * *
After we remanded the case for consideration under Fla.
Stat. § 627.409(2), the parties held an unreported status conference
on June 8, 2021....
...oes not void the policy or
contract, or constitute a defense to a loss thereon, un-
less such breach or violation increased the hazard by
any means within the control of the insured.
Fla. Stat. § 627.409(2)....
CopyPublished | Florida 4th District Court of Appeal
...The court reasoned that
“given the language of subsection [2.a.(1)], subsection [2.a.(3)] would be
superfluous if a ‘false statement’ under [2.a.(3)] included only intentionally
false statements.” Id. at 1036.
Unlike this case, Johnson involved the application of a statute, section
627.409(1), Florida Statutes, which deals with misrepresentations in
insurance applications and allows an insurer to deny recovery for
nonintentional misstatements on an application that materially affect the
risk....
...1978).
Thus, the more common meaning of the term “false statement” in the legal
context is one that includes an element of intent. At a minimum, the term
is ambiguous because it can mean either an “untrue statement” or an
constitute misstatements within the meaning of section 627.409, Florida
Statutes (1993), and therefore cannot provide the grounds for the insurer’s
rescission of the insurance policy.” Although Green contains dicta about parties’
freedom to contract around insurance statutes, section 627.409 was never
implicated in that case, because it was undisputed that the insured did not know
of his medical condition and thus he had “not been shown to have intentionally
or innocently misrepresented any facts within his knowledge and belief.” Id....
CopyPublished | Court of Appeals for the Eleventh Circuit
...Numérica refused to accept the refund or to recognize the rescission. HGIC then brought this diversity action in federal district court, seeking a declaration that the certificates were void due to the misrepresentations. 3 THE ISSUE HGIC proceeded under Fla.Stat. § 627.409(1) (1985) (“Section 627.409”), which states: (1) All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties....
...This provision allows an insurance company to avoid its obligations under a policy whenever the holder of the policy makes material misrepresentations in acquiring the policy. HGIC, in bringing the action, argued that Numérica made such material misrepresentations. 4 HGIC obviously assumed that Section 627.409 applied to this case. 5 Numérica argues that Section 627.409 does not apply to mortgage guaranty insurance. Their argument is very straight-forward. Section 627.409 is part of the Florida Insurance Code....
...ce Code. See, e.g., Fla.Stat. §
635.051 (1985) (licensing provisions incorporated). Those parts of the Insurance Code not expressly incorporated, Numérica contends, do not apply to mortgage guaranty insurance. Since Chapter 635 makes no mention of Section
627.409, the section cannot be relied on by a mortgage guaranty insurance company such as HGIC....
...re made a conscious choice not to have the general provisions of the Code apply to mortgage guaranty insurance. To the extent that the legislature wished to incorporate provisions of the Code into Chapter 635, it expressly did so by statute. Because Section 627.409 is not among the provisions incorporated, it is not applicable to mortgage guaranty insurance....
...This, HGIC argues, is very different from stating that those sections govern mortgage guaranty insurance. We agree with HGIC that Section
635.091 attempts to regulate mortgage guaranty insurers. However, the meaning of “insurers” under the statute is broad. Section
627.409, if applicable, would have been named in Section
635.091....
...Taken as a whole, these parts establish a means of regulating mortgage guaranty insurers. Because of the scope of the statute, we must read “mortgage guaranty insurers” broadly. The statute has basically the same purpose it would have had if the legislature had used the term “insurance” instead of “insurers.” Section
627.409, which sets forth those circumstances in which insurance companies can avoid their contractual obligations, clearly falls within the purview of the statute and would have been listed if the legislature had wanted to confer this right on mortgage guaranty insurers. 2. Implied Repeal Next, HGIC asserts that in Florida there is a presumption against implied repeal of a statute, and that the district court ignored that presumption. We disagree. First, it is unclear that Section
627.409 ever applied to mortgage guaranty insurance. Prior to the enactment of Section
635.091, only one court had relied on Section
627.409 to hold that a mortgage guaranty insurance contract was void. See Continental Mortgage Insurance, Inc. v. Empire Home Loans, Inc., No. 75-1099-Civ-JLK (S.D.Fla. Nov. 16, 1975). Although Section
627.409’s applicability was not a contested issue, the case plainly suggested that Section
627.409 did apply to mortgage guaranty insurance. It is possible that the legislature has expressly incorporated various parts of the Insurance Code partly in order to clarify that many other parts of the Insurance Code, including Section
627.409, do not govern mortgage guaranty insurance law. If the legislature never intended for Section
627.409 to apply to mortgage guaranty insurance, then Section
635.091 did not constitute a repeal of Section
627.409 as it applied to mortgage guaranty insurance. Second, even if the legislature had originally intended Section
627.409 to apply to mortgage guaranty insurance, Section 635.-091 changes this....
...Throughout Chapter 635, there are provisions that list the statutes applicable to Chapter 635; by this system, the chapter implicitly excludes those statutes not mentioned. See State ex rel. Shevin v. Indico Corp.,
319 So.2d 173, 175 (Fla. DCA 1975), cert. dismissed,
339 So.2d 1169 (Fla.1976). Any reading of Section
627.409 that applies it to mortgage guaranty insurance is clearly inconsistent with the more recently enacted Section
635.091. To the extent that Section
627.409 may have applied to mortgage guaranty insurance, then, we find that it has been repealed by Section
635.091. 3. Policy Finally, HGIC declares that a ruling that Section
627.409 does not apply to mortgage guaranty insurance conflicts with established policy....
...from other types of insurance. The average holders of most types of insur-anee policies are individuals; much of the statutory regulation has emerged to protect consumers in their dealings with large insurance companies. Chapter 627, which contains Section
627.409, expressly recognizes this, stating that the chapter’s purpose is to “promote the public welfare” and “protect policyholders and the public.” Fla.Stat. §
627.031 (1985). Section
627.409 in particular clearly exists for this purpose. Prior to its enactment, insurers could much more easily avoid their obligations to innocent policyholders. 7 Section
627.409 protects consumers by making it harder for unscrupulous insurers to declare insurance contracts void based on technicalities. See Case Note, Aviation Law—Florida’s “Anti technical” Statute: Should Insurance Exclusions Be Included?, 10 Fla.St.U.L. Rev. 737, 739-40 (1983). The legislature apparently thought that Section
627.409 and other parts of the Insurance Code were not necessary in the context of commercial insurance policies that are invariably sold to companies engaged in mortgage lending. In addition, mortgage guaranty insurance companies also do not require the protection provided by Section
627.409. Section
627.409 lets insurance companies void policies when material misrepresentations have been made....
...Brief of Amicus Curiae Mortgage Bankers Association of Florida and Alliance Mortgage Company at 7-9 (citations omitted). Because of their unique ability to evaluate the documentation, mortgage guaranty insurance companies are on a more equal footing with mortgage lenders and need not rely on Section 627.409 for protection. Thus, we find that the legislature’s policy is to exclude Section 627.409 from Chapter 635. 8 CONCLUSION For all of the reasons stated in this opinion, we conclude that Section 627.409 of the Florida statutes does not apply to mortgage guaranty insurance....
...Numérica concedes that there were misrepresentations, but claims that it had made them without knowing that the statements were false. Earlier in the litigation, the parties battled over whether the policyholder needed to be aware of the misrepresentation at the time it was made in order to trigger Fla.Stat. § 627.409(1) (1985) ("Section 627.409”). While the parties were still debating, the Florida Supreme Court issued an opinion that resolved the issue. The court declared that even an innocent misrepresentation is sufficient to trigger Section 627.409....
...As a result, only HGIC, Numérica, and Berkeley are still parties to this action. . For the purposes of this interlocutory appeal alone, the materiality of the misrepresentations is not at issue. . This assumption was not completely unfounded. Prior to the enactment of Section
635.091, one district court judge had applied Section
627.409 to mortgage guaranty insurance....
...American Pioneer Savings Bank,
655 F.Supp. 165 (S.D.Fla.1987), also applied the statute to a mortgage guarantee insurance contract that existed before Section
635.091’s enactment. The court in that case, however, implied that Section
635.091 would "repeal" Section
627.409 in this area of the law in the future. See id. at 168 n. 7. The issue of the applicability of Section
627.409 has not been directly addressed since the enactment of Section
635.091....
CopyPublished | Florida 3rd District Court of Appeal
...Christian Carrazana, P.A., and Christian Carrazana, for appellant.
Cole, Scott & Kissane, P.A., and Nicholas Bastidas and Michael A.
Rosenberg (Plantation), for appellee.
Before EMAS, FERNANDEZ and SCALES, JJ.
PER CURIAM.
Affirmed. See § 627.409, Fla....
CopyPublished | Supreme Court of Florida | 11 Fla. L. Weekly 62, 1986 Fla. LEXIS 1645
...Any other consultations with him? If yes, give details. A. No. The company claimed it would never have issued the policy had the Carrolls related the true facts on the application. At the close of the Carroll’s case at trial, Continental moved for a directed verdict based on section 627.409, Florida Statutes (1981), and Life Insurance Co....
...guage beyond the applicant’s understanding, the applicant’s error does not void the policy. The district court certified the instant question, however, because this Court has never directly declared that Fer-menter so modified the Shifflet rule. Section 627.409(1), Florida Statutes (1981), provides that misrepresentations, omissions, concealment of facts, and incorrect statements on an insurance application shall not prevent a recovery under the policy unless they are either: (1) fraudulent;...
...e insurer in good faith either would *408 not have issued the policy or would have done so only on different terms had the insurer known the true facts. 1 In Shifflet this Court construed section 627.01081 of the Florida Statutes, the predecessor to section 627.409....
...proper course would have been to rule in accordance with Shifflet and then certify the question to this Court. United States Steel Corp. v. Save Sand Key, Inc.,
303 So.2d 9 (Fla.1974); Hoffman v. Jones,
280 So.2d 431, 434 (Fla.1973). The language of section
627.409 remains as unambiguous today as the wording of its predecessor examined in Shifflet ....
...Accordingly, we answer the certified question in the negative, quash the opinion of the district court, and remand for proceedings consistent with this opinion. It is so ordered. BOYD, C.J., and OVERTON, EHRLICH and SHAW, JJ., concur. ADKINS, J., dissents. . § 627.409(1), Fla.Stat....
CopyPublished | Florida 3rd District Court of Appeal | 2007 WL 4481439
...ed by Florida. Rule of Civil Procedure 1.510(c) on the insurer's sworn contentions that the undisclosed types of business were material and unacceptable underwriting risks, the trial court correctly granted the motion for final summary judgment. See § 627.409, Fla....
...The trial court denied Progressive's summary, judgment motion which contended that the policy had been canceled. Progressive next moved for summary judgment on the theory that KSA had made a material misstatement in its application for insurance. See id. § 627.409....
...Arregoces testified that he did notify InsureBrite, which was Progressive's agent, about the acquisition of the bus and the identity of the individual who would be driving it. More to the point, Progressive is seeking to avoid coverage in this case on the basis of section 627.409, Florida Statutes....
...y, Progressive) about the bus purchase and bus driver. Obviously there could be no misrepresentation or omission about the bus at the time of the application on March 19, because KSA did not even own the bus at the time of the application. Therefore section 627.409, Florida Statutes (2003), has no application to this case....
CopyPublished | Florida 3rd District Court of Appeal
...upon the truth, completeness and correctness of such
statements and answers. The applicant(s) further understands
that falsity, incompleteness, or incorrectness may jeopardize the
coverage under such policy so issued or renewed in accordance
with Section 627.409, [Florida Statutes].
....
....
...242,
248 (1986)).
ANALYSIS
“Florida law . . . gives an insurer the unilateral right to rescind its
insurance policy on the basis of misrepresentation in the application of
insurance.” Gonzalez v. Eagle Ins. Co.,
948 So. 2d 1, 2 (Fla. 3d DCA 2006).
To this end, section
627.409, Florida Statutes (2020), provides, in relevant
part:
(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 nego...
...hat the vehicle would be used
for business purposes. He further stated that “[i]f 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.” § 627.409(1)(b),
Fla....
CopyPublished | Florida 3rd District Court of Appeal
...United paid the collision claim for
repair of the vehicle but declined to pay the PIP claim submitted by Priority
Medical.
Priority Medical filed a breach of contract claim and United Auto defended,
in part, by arguing that liability was barred under Florida Statute Section 627.409
(2004) because the son had not been listed on the application and the omission was
material.
After proceedings which are irrelevant here, the trial court entered summary
judgment in favor of United Auto....
CopyPublished | Florida 3rd District Court of Appeal
...accepted further premiums despite its knowledge of the Homeowners’
failure to indicate the two prior water loss claims. At that point, they argued,
the insurance company could have elected to exercise its right to rescind
the policy pursuant to section 627.409(1), Florida Statutes, but did not....
...2d 1141, 1142 (Fla. 2d DCA 1998) (holding that in order
for an insurer to rescind an insurance policy based on a misrepresentation,
the misrepresentation must be material; however, the insurer does not
need to establish that it was intentional).
Further, Section 627.409(1), (2020), Florida Statutes, provides:
9
1) Any statement or description made by or on behalf of an
insured or annuitant in an application for an insurance policy or
annuity c...
