Trial Court granted Summary Judgment in favor of the insurer on the basis of a Material Misrepresentation, and the Court rescinded the homeowners policy based on the misrepresentation pursuant to Fla. Stat. § 627.409.

On the policy application, each insured answered negative to the question: “…Do you have any knowledge of any prior repairs made to any structures on the insured location for cracking damage?”  During discovery, the insured obtained a real estate inspection and orientation form from the purchase transition that identified cracks in ceiling, drywall, and baseboard that were ostensibly signed by the insureds.

The insurer was granted Summary Judgment predicated upon an affidavit of a vice president of underwriting that alleged “…..(Tower Hill) would not have issued the policy had it known of the existing cracking damages…” in conjunction with the inspection forms.

The Second District noted the insurer had to burden to prove insured’s statement was (1) a misrepresentation, (2) it was material, and (3) the insurer detrimentally relied on the misrepresentation.  In reversing, the Second District found the evidence did not establish the answer to the question in the application was a misrepresentation, and the proof failed to establish that the representation was material to the acceptance of its risk or that the true facts would have caused it not to issue these policies.

The Second District noted “…the conclusory opinion of Tower Hill’s assistant vice president of underwriting in the affidavit simply does not present sufficient facts to explain why the answers to this specific question on the applications were material to the risk….”


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