Graham v. Lloyd's Underwriters at London

964 So. 2d 269, 2007 Fla. App. LEXIS 14597, 2007 WL 2713550
CourtDistrict Court of Appeal of Florida
DecidedSeptember 19, 2007
Docket2D06-3621
StatusPublished
Cited by9 cases

This text of 964 So. 2d 269 (Graham v. Lloyd's Underwriters at London) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graham v. Lloyd's Underwriters at London, 964 So. 2d 269, 2007 Fla. App. LEXIS 14597, 2007 WL 2713550 (Fla. Ct. App. 2007).

Opinion

964 So.2d 269 (2007)

Delores GRAHAM, Appellant,
v.
LLOYD'S UNDERWRITERS AT LONDON, Appellee.

No. 2D06-3621.

District Court of Appeal of Florida, Second District.

September 19, 2007.

*271 Matthew D. Pardy of Kim, Pardy & Rodriguez, P.A., Orlando, for Appellant.

Neil Bayer of Sarnoff & Bayer, Coconut Grove, for Appellee.

PER CURIAM.

Delores Graham appeals the trial court's order granting final summary judgment in favor of her insurer, Lloyd's of London. Lloyd's denied coverage for damages to Ms. Graham's Naples home sustained during Hurricane Charley on August 13, 2004, based on its assertion that Ms. Graham had made a material misrepresentation in her application for insurance coverage. Because there are unresolved genuine issues of material fact in this case, we reverse the summary judgment entered in favor of Lloyd's and remand for further proceedings.

In June 2004, Ms. Graham applied for homeowner's insurance through the John Lee Insurance Agency, an independent agent in Naples, Florida. The application contains an entry indicating that the home is three miles from the "gulf." Mr. Lee submitted the application to The Levings Group (Levings), the surplus lines agent for Lloyd's Underwriters at London (Lloyd's). On June 10, 2004, Levings issued a binder for coverage of Ms. Graham's home, with coverage effective as of June 9, 2004. A policy was subsequently issued which included windstorm coverage. Shortly after issuing the policy, Levings had the home inspected by an independent inspector. That inspector reported that the home was one and one-quarter miles from the gulf.

Lloyd's alleges that on July 12, 2004, it sent a letter to John Lee Insurance stating that based on the inspection report, "please send endorsement request to increase coverage to $150,000 and X-wind[1] or send proof of replacement cost and distance to coast." This document contains the word "FAX" at the top and is dated July 12, 2004, but contains no facsimile time or date markings or a fax confirmation report.

Lloyd's also alleges that on August 11, 2004, it sent another letter to Mr. Lee discussing the "X-wind" problem. However, the typed portion of this letter discusses only the increased replacement cost and *272 does not mention the "X-wind" problem at all. At the bottom of the letter is a handwritten notation stating, "[h]ome needs to be X-wind. Inspection report states home is 1¼ miles to the gulf." No evidence was presented as to whether the handwritten entry was added to the letter prior to the time it was allegedly sent or who wrote it. More importantly, the record does not establish whether either of the above-mentioned documents were ever actually faxed or mailed to John Lee Insurance. Mr. Lee was never deposed nor was the individual who allegedly sent the letters. Ms. Graham contends that she had never seen either of these letters and was never informed of their existence by Mr. Lee, assuming that he did get them.

On August 13, 2004, Hurricane Charley struck the gulf coast of Florida causing damage to Ms. Graham's home. Three days after the hurricane, on August 16, 2004, Levings sent Mr. Lee a change endorsement deleting wind damage coverage from Ms. Graham's policy. Meanwhile, having suffered wind damage from Hurricane Charley, and purportedly without notice that her policy would not cover damage caused by the hurricane, Ms. Graham submitted a claim. Lloyd's denied the claim on the basis that wind damage was excluded. Ms. Graham filed suit. The trial court ordered the parties to nonbinding arbitration. The arbitrator found that (1) there was a material ambiguity in the homeowner's policy application with respect to the definition of "gulf and/or distance to gulf," (2) Lloyd's waived its coverage defenses by failing to notify its insured after having actual or constructive knowledge of the (alleged) actual distance to the gulf for more than thirty days[2] prior to the date of the loss, and (3) Ms. Graham's losses were covered losses under the policy of insurance. After the arbitrator issued his decision in favor of Ms. Graham, Lloyd's filed a motion for trial de novo, which the trial court granted. Lloyd's then filed a motion for summary judgment based on its assertion that Ms. Graham had made a material misrepresentation in her application with regard to the distance to the gulf. After a hearing, the trial court granted the motion.

We review a trial court's grant of a party's motion for summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). Summary judgment may only be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla. R. Civ. P. 1.510(c). The burden is on the moving party to show conclusively that the nonmoving party cannot prevail. Gomes v. Stevens, 548 So.2d 1163, 1164 (Fla. 2d DCA 1989). "If the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper." Id. "The presumption of correctness generally *273 applicable to all orders subject to appellate review is relatively weak in review of a summary judgment because the appellate court is in no less of a position than the trial court in reviewing documentary evidence." Poe v. IMC Phosphates MP, Inc., 885 So.2d 397, 400-01 (Fla. 2d DCA 2004).

The basis of Lloyd's motion for summary judgment was its assertion that Ms. Graham indicated in her insurance application that her home was three miles from the gulf, when in fact it was less than two miles from the gulf. Lloyd's asserts that this is a misrepresentation material to the risk and that it would not have issued the policy with wind damage coverage had the true facts been known.[3] Ms. Graham disputes the calculation of the actual distance, asserts that the application language is ambiguous, and alleges that Lloyd's waived any defenses to coverage by sitting on its knowledge of the claimed defense for over a month and failing to notify her of the coverage question and/or failing to issue a change endorsement until after the hurricane had passed.

DISTANCE TO THE GULF

Lloyd's relied on the report of an independent inspector who indicated that he measured the distance on a map and came up with one and one-quarter miles. During his deposition, the inspector stated that he also drove to the beach from Ms. Graham's home and found the distance to be about one and one-quarter miles. However, Ms. Graham points out that the inspector, by his own admission, had stopped at Clam Beach Park, which is as far as one can go by car on that route. According to the testimony and affidavit of another witness, the distance to the actual shoreline from where the Lloyd's inspector stopped is another three-quarters of a mile. Thus, argues Ms. Graham, even by Lloyd's agent's attempt to drive to the beach, the distance is at least two miles. She contends that because Lloyd's would have issued the policy as long as the distance was over two miles, any misrepresentation which might be attributed to Ms. Graham's claim that her home was three miles from the gulf instead of two would not be material to the risk.

Following arguments of counsel, the trial court announced it was granting the motion for summary judgment but the court did not explain its decision.

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Cite This Page — Counsel Stack

Bluebook (online)
964 So. 2d 269, 2007 Fla. App. LEXIS 14597, 2007 WL 2713550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graham-v-lloyds-underwriters-at-london-fladistctapp-2007.