Baker v. United Services Auto. Ass'n
| Decision Date | 10 October 1995 |
| Docket Number | No. 94-3983,94-3983 |
| Parties | 20 Fla. L. Weekly D2297 Robert A. BAKER, M.D., Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Adam D. Cruz, and Joanne Cruz, Appellees. |
| Court | Florida District Court of Appeals |
James C. Cumbie, Jacksonville, for Appellant.
Kristen M. Van Der Linde and Noah H. Jenerette, Jr. of Boyd & Jenerette, P.A., Jacksonville, for Appellees.
Robert A. Baker, M.D., (Baker), appeals an order granting partial summary judgment in favor of United Services Automobile Association (USAA) on his claim of fraudulent misrepresentation. Finding that genuine issues of material fact exist, we reverse and remand for further proceedings.
Baker sustained injuries while riding as a passenger in an automobile owned by his mother which was struck by an automobile operated by Adam Cruz and owned by Joanne Cruz. Neither Joanne Cruz nor Adam Cruz carried automobile liability coverage. Baker carried uninsured motorist coverage in the amount of $1,000,000 through USAA, and Baker's mother carried uninsured motorist coverage of $1,000,000 through State Farm Insurance Company (State Farm).
Baker filed a two-count complaint alleging negligence on the part of the operators and owners of both automobiles, and breach of contract on the part of USAA and State Farm for failure to pay uninsured motorist benefits. Shortly after filing the complaint, Baker settled with State Farm, his mother's insurer, in the amount of $300,000, and State Farm was dismissed as a party defendant.
Baker then filed an amended complaint alleging negligence on the part of Joanne and Adam Cruz and breach of contract against USAA for failure to pay uninsured motorist benefits. In due course, USAA moved for summary judgment on the basis that, since its coverage was excess over that of State Farm's primary coverage, it was entitled to a $1,000,000 set-off attributable to any damages found to be owing Baker to which uninsured motorist coverage would be applicable. Following a hearing, the trial court entered an order granting USAA's motion for partial summary judgment, finding in pertinent part:
... USAA and Baker entered into a written insurance contract wherein USAA and Baker agreed that if Baker was occupying an automobile which he did not own, but which automobile had insurance coverage providing him UM/UIM coverage, that coverage would constitute primary coverage while USAA's insurance coverage would constitute excess coverage. Baker was occupying an automobile insured by a company other than USAA at the time of the automobile collision. Since Baker has not exhausted the limits of State Farm's UM/UIM coverage, USAA is entitled to a $1,000,000.00 set-off attributable to any damages found to be owing to Baker to which uninsured motorist coverage would be applicable.
No appeal has been taken from this partial summary judgment.
Thereafter, Baker amended his complaint by adding as an additional count a claim of misrepresentation against USAA alleging in essence that USAA, by and through its agent Ben Poe, had misrepresented the extent of its uninsured motorist coverage. This new claim arises from a letter written by Baker's USAA agent, Ben Poe, to Baker's attorney while the settlement negotiations with State Farm were ongoing. In this letter, Poe wrote:
I agree that the Uninsured Motorist Coverage that is available appears to be subject to each company's pro-rata share. I also have indications that there was negligence on the part of the driver of the vehicle that Dr. Baker was occupying. With this in mind, you may need to pursue the Bodily Injury Liability Coverage with State Farm.
The misrepresentation count alleges:
(1) that Ben Poe, acting within the course and scope of his employment with USAA, misrepresented the material fact of pro-rata uninsured motorist coverage;
(2) that Poe either knew that the uninsured motorist coverage was not pro-rata, or made representations that the uninsured motorist coverage was pro-rata without knowledge of the truth or falsity of those representations, or made this representation regarding pro-rata coverage under circumstance where he knew or should have known of the falsity thereof;
(2) that Poe intended that Baker would rely on these statements in settling his claim against State Farm;
(3) that Baker acted in justifiable reliance upon the representation and settled with State Farm for $300,000.00;
(4) that Baker would not have settled with State Farm except for Poe's written acknowledgment of pro-rata coverage;
(5) that Baker settled his claim for less than its full value against State Farm and for less than State Farm's policy limits based upon Poe's misrepresentation and acknowledgment of coverage; and
(6) that Baker has been damaged by Poe's misrepresentation in that now, instead of receiving pro-rata coverage, he will only receive excess coverage under the current summary judgment ruling.
Following the trial court's denial of USAA's motion to dismiss this new claim, USAA moved for summary judgment on the basis that Poe's letter constituted nothing more than an expression of opinion and could in no way be deemed a fraudulent statement of fact rendered to induce Baker to settle his claim with State Farm. In opposition to the motion for summary judgment, Baker submitted the affidavit of one William Jones, Jr., whose resume reflects M.A. and L.L.B. degrees and an extensive employment history in the insurance industry. Jones opined that the USAA policy is ambiguous as to whether the uninsured coverage is pro-rata or excess and that there exists an issue of material fact as to whether or not USAA waived or is estopped from asserting excess coverage in view of the statements made by Poe.
Following a hearing, the trial court entered an order granting the motion for summary judgment in favor of USAA as to the claim of misrepresentation. As grounds, the court concluded that Poe's statement amounted to a mere opinion as to the extent of coverage available to Baker and thus was not actionable, that Baker was represented by an attorney who must be deemed to possess knowledge as to insurance coverage at least equal to Poe's knowledge, that the parties were dealing on equal terms during their discussions regarding the extent of coverage, and that USAA did not prevent Baker or his attorney from conducting an independent investigation regarding the extent of available coverage.
Baker contends on appeal that the trial court, in summarily barring his claim for misrepresentation, invaded the province of the jury in resolving factual issues to reach the ultimate conclusion that no genuine issues of material fact exist and that the record demonstrates no basis for a misrepresentation action. We agree.
The essential elements of a fraudulent representation for which relief can be had are: (1) a false statement concerning a specific material fact; (2) the representor's knowledge that the representation is false; (3) an intention that the representation induces another's reliance; and (4) consequent injury by the other party acting in reliance on the representation. Lance v. Wade, 457 So.2d 1008 (Fla.1984); Johnson v. Davis, 480 So.2d 625 (Fla.1985); Amazon v. Davidson, 390 So.2d 383 (Fla. 5th DCA 1980).
A misrepresentation, to be actionable, must be one of fact rather than opinion. Amazon; Thor Bear, Inc. v. Crocker Mizner Park Inc., 648 So.2d 168 (Fla. 4th DCA 1994) (); Chino Elec., Inc. v. U.S. Fidelity & Guar. Co., 578 So.2d 320 (Fla. 3d DCA 1991). Participants in a normal business transaction are not entitled to rely upon such "ephemeral matters" as opinions, judgments or legal views expressed by an opposing party. Chino at 323. See also Nagashima v. Busck, 541 So.2d 783 (Fla. 4th DCA 1989). However, where a statement can be viewed as coming from one with superior knowledge of the subject of the statement, such statement may constitute a statement of fact rather than opinion. Thor Bear; A.S.J. Drugs, Inc. v. Berkowitz, 459 So.2d 348 (Fla. 4th DCA 1984); Amazon. Statements of opinion are not actionable unless the party making the representation does so with an intent to prevent the party relying thereon from making an independent investigation of the facts. Travelodge Intern., Inc. v. Eastern Inns, Inc., 382 So.2d 789 (Fla. 1st DCA 1980).
In the instant case, the record reflects there was some dispute between the parties with regard to the applicability of the uninsured motorist provisions of both policies. Specifically, there was some...
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