5D06-1705 Vasques v. Mercury Casualty Co.

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D06-1705

Case Date: 01/29/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2007

ERNESTO VASQUES, Petitioner, v. MERCURY CASUALTY COMPANY, Respondent. ________________________________/ Opinion filed February 2, 2007 Petition for Certiorari Review of Decision from the Circuit Court for Seminole County Acting in its Appellate Capacity. Jamie Billotte Moses, of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, and Kimberly A. Driggers, of The Nation Law Firm, Longwood, for Petitioner. Randall A. Wainoris, of Haas, Dutton, Blackburn, Lewis, Longley & Lee, Tampa, for Respondent. Case No. 5D06-1705

GRIFFIN, J. Petitioner, Ernesto Vasques ["Vasques"], appellant below, seeks a writ of certiorari to quash the circuit court's appellate decision affirming the Seminole County court's summary judgment in favor of Respondent, Mercury Casualty Company ["Mercury"]. On December 29, 2001, Vasques severely injured his hand while working on an automobile in the garage of Maida L. Shehata. As a result of the accident, Vasques

incurred hospital bills and orthopaedic surgery bills in excess of $25,000. Additionally, Vasques lost his job as an electrical helper. Vasques sought personal injury protection ["PIP"] benefits under Shehata's private passenger automobile policy with Mercury. His claim was denied. After Mercury denied Vasques' claim, Vasques filed suit to establish his entitlement to PIP benefits. Mercury's affirmative defense asserted that Mercury was entitled to deny Vasques' claim because the Shehatas had made material misrepresentations to Mercury regarding facts of the accident. Specifically, during the investigation of this claim by Mercury, the insured, Maida Shehata, her son, George Shehata, and George's girlfriend gave recorded statements to Mercury. In those

statements, they denied being aware of the December 29, 2001, incident or even knowing Ernesto Vasques. Subsequently, however, in their depositions taken two years after the claim was denied, both Maida Shehata and George Shehata ["Shehatas"] admitted that they knew Vasques and were aware of the accident on December 29, 2001. They admitted previously telling Mercury otherwise. In their testimony, they

suggested they lied to protect themselves from any claim by Vasques. Mercury moved for summary judgment, contending that condition number 10 of the Mercury policy concerning misrepresentations relieved it of any liability in this case. Mercury has acknowledged that, but for the Shehatas' misrepresentations, Vasques would be entitled to coverage.1 Mercury also concedes that Vasques made no

misrepresentations to Mercury concerning his claim.

1

At the hearing on the Motion for Summary Judgment, Mercury's counsel stated:

2

The trial court granted Mercury's "Motion for Final Summary Judgment," agreeing that condition 10 relieved Mercury of liability under the policy. From that summary final judgment, Vasques appealed to the circuit court. The circuit court, sitting in its review capacity, affirmed the summary final judgment in favor of Mercury. Vasques now seeks review in this court, contending that the error below is of such a nature and magnitude that it warrants second-tier appellate review. We agree, grant the writ and quash the circuit court's decision. A district court may exercise its discretion to grant certiorari review when procedural due process has not been afforded or there has been a violation of a clearly established principle of law resulting in a miscarriage of justice. Progressive Express Ins. Co. v. Physician's Injury Care Center, Inc. , 906 So. 2d 1125, 1126 (Fla. 5th DCA 2005). We agree that the circuit court's decision affirming the judgment in favor of Mercury violated clearly established principles of Florida law resulting in a miscarriage of justice for Vasques. Although we agree with Vasques that Mercury relies on a misinterpretation of the policy language on which it based its denial of coverage, the principal basis upon which we conclude that jurisdiction lies is that the policy language at issue

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