RAPPAPORT V. PROGRESSIVE

State: Florida

Court: Florida Third District Court

Docket No: 06-0778

Case Date: 12/26/2007

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2007
Opinion filed December 26, 2007. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D06-778 Lower Tribunal Nos. 03-26408; 04-20605 ________________

Armand Rappaport, etc.,
Appellant, vs.

Progressive Express Insurance Company,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Gill S. Freeman, Judge. Chasin & Stinson; Philip D. Parrish, for appellant. Houck Anderson and Valerie A. Dondero, for appellee.

Before COPE and SALTER, JJ., and FLETCHER, Senior Judge. SALTER, J.

Armand Rappaport, personal representative of the estate of a bus passenger who died following an injury aboard the bus, appeals a final summary judgment in favor of Progressive Express Insurance Company ("Progressive"). The trial court found that there was no genuine issue of material fact that KSA Tours, owner of the bus, had "loaned its bus to J.J. USA Bus Tours, Inc. without notice to the insurer, both as to the entity and driver," with the result that there was no coverage applicable to the bus or accident. We review the summary judgment de novo, viewing all of the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000). We affirm, finding that KSA Tours did not disclose to Progressive as part of its application that KSA Tours loaned its vehicles, or would loan its vehicles, to uninsured corporations for the transportation of tourists. * Because the appellant did not file opposing "summary judgment evidence" as provided by Florida Rule The dissent focuses on the time sequence of application, purchase of the bus involved in the accident, and KSA Tours' alleged verbal notification regarding the new bus and additional driver. Respectfully, that is not the issue. Insurers underwrite and issue policies based on accurate disclosures by prospective insureds on their applications, not on lines and types of business that materially change before the policy is even issued. On this record, Mr. Arregoces never intimated to Progressive or InsureBrite that KSA Tours might also rent vehicles to separate (and uninsured) companies. In addition, he filed no affidavit, deposition excerpt, or other sufficient evidence to contradict Progressive's affidavit and evidence on that dispositive point. Had J.J. USA Bus Tours been a co-applicant, or had Mr. Arregoces accurately disclosed KSA Tours' business with J.J. USA Bus Tours, this would be a different case. 2
*

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

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