State Farm Mutual Automobile Insurance Company v. Cockram et al
Filing
71
OPINION AND ORDER finding in favor of State Farm and against Powers on the 17 Amended complaint; finding against Powers and in favor of State Farm on the 20 Counterclaim; and dismissing the Crossclaim with prejudice. The Clerk shall enter an amended judgment as indicated in the Opinion and Order and close the file. Signed by Judge John E. Steele on 10/16/2012. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STATE
FARM
MUTUAL
INSURANCE COMPANY,
AUTOMOBILE
Plaintiff,
vs.
Case No.
2:11-cv-161-FtM-29DNF
RICHARD E. COCKRAM and ERIC POWERS,
Defendants.
___________________________________
OPINION AND ORDER
This matter came before the Court for a non-jury trial on
October 10, 2012, of the declaratory judgment claims between State
Farm Mutual Automobile Insurance Company (State Farm) and Eric
Powers (Powers).1
The Court heard testimony from two witnesses,
received twelve exhibits, and heard the arguments of counsel.
The
Court’s findings of fact and conclusions of law are set forth
below.
I.
On August 29, 2008, Richard E. Cockram (Cockram) appeared at
the
State
Farm
office
in
LaBelle,
Florida
and
applied
for
automobile insurance. Cockram’s application was taken by Bobbi Sue
Anderson (Anderson).
1
While Anderson has no independent memory of
A Default Judgment (Doc. #28) was entered in favor of State
Farm and against Richard E. Cockram on April 5, 2012.
the transaction, she identified her paperwork and general custom
and practice in connection with such insurance applications, and
the material portions of her testimony are not disputed. The Court
found her testimony to be credible.
Anderson
began
the
application
process
by
eliciting
information from Cockram to complete a State Farm Insurance Auto
Quote Sheet.
Pl.’s Exh. 3.
When asked about “accidents” and
“tickets” he had received in the last six years, Cockram told
Anderson about two accidents and one ticket for making an illegal
turn.
Anderson placed this information on the Quote Sheet, and
knew that neither the accidents nor the ticket would disqualify
Cockram
from
obtaining
automobile
insurance
from
State
Farm.
Cockram did not tell Anderson that he had been arrested and
ticketed for Driving Under the Influence (DUI) two weeks before.
Plaintiff’s Exhibit 9.2
Anderson ran a driving history report on
Cockram, which at the time did not reflect the DUI arrest or
ticket. If Cockram had told Anderson about the DUI ticket, Anderson
testified that she would have stopped the application process
because she knew such a ticket was a disqualifying event under
State Farm’s internal policies and Cockram would not be eligible
for State Farm automobile insurance coverage.
2
Anderson testified
In a subsequent Examination Under Oath, Cockram confirmed
that he did not tell Anderson about the DUI arrest or ticket,
asserting that he did not think it was important because he was not
guilty of DUI. Pl.’s Exh. 8.
-2-
that the DUI arrest would not have been a disqualifying event, only
the DUI ticket.
Believing
Cockram
eligible
for
State
Farm
automobile
insurance, Anderson began to complete the Application for State
Farm Mutual Automobile Insurance, Pl.’s Exh. 1, on her computer.
Anderson proceeded to input the information given by Cockram into
the computer, and asked specific additional questions. As relevant
to this case, Anderson asked Cockram whether during the last six
years he had “been fined, convicted, or forfeited bail for traffic
violations?”
Cockram truthfully answered “no”.3
Anderson then
asked Cockram the “Number of minor violations in the past 3 years”,
the “Number of major violations in the past 3 years”, and the
“Number of major violations in the past 3-5 years” without defining
“minor violation” or “major violation”.
After each question,
Cockram told Anderson he had none, and Anderson inserted “0”s in
the application form.
Anderson pointed out to Cockram the portion
of the application form in which he agreed that his “statements on
this application are correct”. The only portion of the application
process which contains Cockram’s signature is a Florida Uninsured
3
While neither Anderson nor Cindy Bailey felt this answer was
truthful in light of the DUI arrest and ticket, the Court finds
otherwise. At the time of the application, Cockram had in fact not
been fined, convicted or forfeited bail in the DUI case.
The
question called for no additional information, such as arrests,
tickets, or pending charges, and the “no” was literally true.
-3-
Motor Vehicle Coverage - Selection/Rejection Form, which was signed
by Cockram.
Pl.’s Exh. 4.
Anderson transmitted the application, as well as documents
verifying Cockram’s vehicle registration and current insurance, to
the appropriate State Farm department. Pl.’s Exh. 2.
Based on the
information provided by Cockram during the application process,
State Farm issued Policy Number 684 7953-B29-59 for the policy
period of August 29, 2008 to February 28, 2009.
Pl.’s Exh. 11.
Anderson testified that while Cockram’s DUI arrest would not
have
been
important
important
information
information
to
the
to
her,
application
the
DUI
process.
ticket
was
Anderson
testified that if Cockram has told her about the DUI ticket, she
would have stopped the application process and told Cockram that he
was not eligible for insurance with State Farm. Anderson knew from
her experience that State Farm’s internal policy was not to issue
automobile insurance to a person who had received a DUI ticket,
regardless of whether the person asserted his innocence or whether
there had been a conviction.
Anderson confirmed that even if
Cockram had told her about the ticket and explained he was not
guilty and was going to fight the ticket, the internal policy of
State Farm was that Cockram was ineligible for automobile insurance
and she would have stopped the application process.
Cindy Bailey (Bailey) has been an underwriting supervisor for
State Farm for approximately thirteen years. Bailey testified that
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a person who receives a DUI ticket is not eligible for automobile
insurance from State Farm, regardless of actual guilt, and that had
State Farm been informed of Cockram’s DUI ticket it would not have
issued the automobile insurance policy.
On September 28, 2008, Cockram was in an automobile accident
while driving an automobile covered by the State Farm insurance
policy.
Eric Powers (Powers) asserts he suffered severe bodily
injury as a result of this accident, and made a claim under the
State Farm policy.
Bailey testified that after the claim by Powers, State Farm
re-examined Cockram’s application, discovered the DUI ticket by rerunning a driver’s history record, and determined that Cockram had
made a material misrepresentation by not disclosing the DUI ticket
during the application process.
Following State Farm’s internal
procedures, Bailey and others within the company determined that
the case met State Farm’s Criteria for Rescission.
Pl.’s Exh. 5.
Bailey testified that while the rescission criteria provided that
a misrepresentation was material if it involved “motor vehicle
conviction history,” State Farm interprets this to require only a
“violation” and not an actual “conviction”, and that a DUI ticket
was all that was required.
By a letter to Cockram dated July 29, 2009, State Farm
rescinded the insurance policy and returned all monies received in
-5-
connection with the application.
Pl.’s Exh. 7.
Cockram did not
challenge the rescission.
On or about September 7, 2010, Powers filed a one-count
negligence suit against Cockram in the Twentieth Judicial Circuit
Court, in and for Hendry County, Florida.
The lawsuit sought
$250,000 in damages for personal injuries sustained in the motor
vehicle accident caused by Cockram.
The lawsuit asserted that on
September 28, 2008, the vehicle Powers was driving was struck in
the rear by a motor vehicle operated by Cockram.
11; Doc. #53, ¶¶ 3, 9g.)
(Doc. #17, ¶¶ 10-
This case remains pending in state court.
On September 30, 2011, State Farm filed a Supplement to
Complaint for Declaratory Judgment (Amended Complaint) (Doc. #17)
against
Cockram
and
Powers
seeking
a
determination
of
its
obligations to defend and potentially indemnify Cockram under the
insurance policy issued to Cockram.
failure
to
disclose
the
DUI
State Farm asserted that the
arrest
constituted
a
material
misrepresentation or concealment of fact under the Policy itself
(Doc. #17, ¶¶ 16-18) and under Fla. Stat. § 627.409 (Doc. #17, ¶¶
19-20).
State Farm seeks a declaration that:
(1) Cockram made
material misrepresentations and concealed a fact in applying for
the State Farm policy; (2) State Farm would not have issued the
subject Policy had it known the true facts regarding Cockram’s DUI
arrest
on
August
15,
2008;
(3)
As
a
result
of
the
misrepresentations and concealments of fact made by Cockram, State
-6-
Farm properly rescinded the automobile insurance policy; (4) State
Farm has no obligation under the automobile insurance policy to
defend or indemnify Cockram for any liability and damages that may
be assessed against him in the underlying litigation by Powers; and
(5) Cockram and Powers are estopped from pursuing a claim, defense
and/or indemnity action against State Farm for any damages arising
from the accident that occurred on September 28, 2008.
On November 2, 2011, Powers filed an Answer, Affirmative
Defenses and Counterclaim and Crossclaim (Doc. #20) against State
Farm and Powers.
The Counterclaim seeks a declaratory judgment
that
entitled
Cockram
is
to
coverage
under
the
State
Farm
automobile insurance policy because State Farm could not rescind
the automobile insurance policy without prior notice to the insured
and because an arrest is not a conviction and therefore the failure
to disclose an arrest was not relevant or material or a concealment
or fraud under the policy.
There were no allegations provided in
support of the Crossclaim against Cockram.
On November 21, 2011,
State Farm filed an Answer and Affirmative Defenses to Counterclaim
and Crossclaim (Doc. #21).
Cockram did not respond or file an answer to the Amended
Complaint, and a Default (Doc. #24) and a Default Judgment (Doc.
#28) were issued against Cockram as to the Amended Complaint.
Powers has not pursed the Crossclaim against Cockram, so the
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Crossclaim
will
be
dismissed
with
prejudice
for
failure
to
prosecute.
II.
Because subject-matter jurisdiction exists based on diversity
jurisdiction pursuant to 28 U.S.C. § 1332, the parties agree that
Florida law applies.
A.
(Doc. #53, ¶¶ 1, 10.)
The Court concurs.
Statutory Right of Rescission
State Farm asserts that it had a statutory right to rescind
the automobile insurance policy issued to Cockram.
If true, this
would alleviate the need to determine whether rescission was proper
under the provisions of the insurance policy itself because “a
material misrepresentation renders the policy null and void from
the date of inception.”
Progressive Am. Ins. Co. v. Papasodero,
587 So. 2d 500, 502 (Fla. 2d DCA 1991).
Florida Statute § 627.409 provides in pertinent part:
(1) Any statement or description made by or on behalf of
an insured or annuitant in an application for an
insurance policy or annuity contract, or in negotiations
for a policy or contract, is a representation and is not
a warranty. A misrepresentation, omission, concealment
of fact, or incorrect statement may prevent recovery
under the contract or policy only if any of the following
apply:
(a) The misrepresentation, omission, concealment, or
statement is fraudulent or is material either to the
acceptance of the risk or to the hazard assumed by the
insurer.
(b) If the true facts had been known to the insurer
pursuant to a policy requirement or other requirement,
the insurer in good faith would not have issued the
policy or contract, would not have issued it at the same
-8-
premium rate, would not have issued a policy or contract
in as large an amount, or would not have provided
coverage with respect to the hazard resulting in the
loss.
Fla. Stat. § 627.409(1).
The Florida Supreme Court has found this
section to be an unambiguous codification of the principle of law
that “a contract issued on a mutual mistake of fact is subject to
being voided and defines the circumstances for the application of
this principle.”
Cont’l Assurance Co. v. Carroll, 485 So. 2d 406,
409 (Fla. 1986). An insurer seeking to rescind an insurance policy
bears the burden to plead and prove the misrepresentation, its
materiality, and the insurer’s detrimental reliance.
Griffin v.
Am. Gen. Life & Accident Ins. Co., 752 So. 2d 621, 623 (Fla. 2d DCA
1999).
“An insurer is entitled, as a matter of law, to rely upon
the accuracy of the information contained in the application, and
has no duty to make additional inquiry.” Independent Fire Ins. Co.
v. Arvidson, 604 So. 2d 854, 856 (Fla. 4th DCA 1992)(citation
omitted).
(1)
Whether Statute Applicable in This Case
Powers argues that Florida Statute Section 627.409 does not
apply to automobile insurance policies when there has been a claim
filed by an innocent third-party for damages and the rescission is
made after the injury and claim.
State Farm filed a post-trial
Supplemental Trial Brief (Doc. #70) providing examples of cases
where post accident rescission occurred.
-9-
It is certainly true that the statutory right to rescind
granted
by
Fla.
Stat.
§
627.409
does
not
specifically identified types of insurance.
apply
to
certain
See Fla. Stat. §
627.401. The excluded types of insurance do not include automobile
insurance in general, or automobile insurance where an innocent
third-party has been injured and has filed a claim before the
rescission of the policy.
Absent an express exclusion by the
Florida legislature, the statutory right to rescission applies to
automobile insurance policies.
United Auto. Ins. Co. v. Salgado,
22 So. 3d 594 (Fla. 3d DCA 2009)(“absent an express exclusion by
the legislature, the right of rescission contained in section
627.409,
Florida
Statutes
(2003),
applies
to
PIP
insurance
contracts issued pursuant to the Florida Motor Vehicle No-Fault
Law.”)
Additionally, Florida courts have already found that the
statutory right to rescission applies in a situation such as in
this case.
E.g., Redland Ins. Co. v. Cem Site Constructors, Inc.
86 So. 3d 1259 (Fla. 2d DCA 2012); Mercury Ins. Co. of Fla. v.
Markham,
36
So.
3d
730
(Fla.
1st
DCA
2010);
Penaranda
Progressive Am. Ins. Co., 747 So. 2d 953 (Fla. 2d DCA 1999).
v.
The
Court concludes that the statutory right to rescind granted by Fla.
Stat. § 627.401 can apply in the circumstances of this case.
(2)
Whether Prior Notice Required In This Case
The
Court
also
rejects
Powers’
argument
required before statutory rescission is proper.
-10-
that
notice
is
“Under Florida
law, an insurer has the right to unilaterally rescind an insurance
policy on the basis of misrepresentation in the application for
insurance.
[ ]
No consent by the opposing party is needed.
[ ]
By returning Towers’ premium, Clarendon voided the contract between
the parties rendering all of the contractual provisions, including
the arbitration clause, unenforceable.”
Towers v. Clarendon Nat’l
Ins. Co., 927 So. 2d 913, 914 (Fla. 2d DCA 2006)(internal citations
omitted).
See also Fabric v. Provident Life & Accident Ins. Co.,
115 F.3d 908, 912 (11th Cir. 1997)(“Where a misrepresentation
occurs that meets the requirements of § 627.409 the insurer, as a
matter of right, may unilaterally rescind.”)
(3)
Whether Statutory Rescission Available In This Case
The issue becomes whether a misrepresentation satisfied the
requirements of Fla. Stat. § 627.409(1) in this case.
contends
that
rescission
was
proper
because
State Farm
there
was
a
misrepresentation that was either (a) material either to the
acceptance of the risk or to the hazard assumed by the insurer, or
(b) if the true facts had been known to State Farm, it in good
faith would not have issued the policy.
(a)
(Doc. #68, ¶¶5-6.)
A Misrepresentation
“This Court has found that an essential prerequisite to the
application of Florida Statutes section 627.409(1) is that the
insured make an inaccurate statement in his application.”
v.
Metro.
Life
Ins.
Co.,
200
F.
-11-
App’x
961,
965
Miguel
(11th
Cir.
2006)(citations and internal quotation marks omitted).
Under the
statute, the general rule is that “a misstatement in, or omission
from, an application for insurance need not be intentional before
recovery may be denied pursuant to section 627.409.” Kieser v. Old
Line Life Ins. Co. of Am., 712 So. 2d 1261, 1263 (Fla. 1st DCA
1998).
The Court finds that there was one misrepresentation made
by Cockram in his application for automobile insurance with State
Farm.
During the application process, Cockram was specifically asked
if he had received a ticket in the last six years, and he responded
by identifying a ticket for an illegal turn but omitting the DUI
ticket he had received just two weeks before.
Pl.’s Exh. 3.
Cockram knew he had been issued the DUI ticket, and intentionally
failed to disclose its existence because he believed it was not
important and because he believed he was innocent.
80:9-15, June 25, 009.
Pl.’s Exh. 8,
An oral misrepresentation during the
insurance application process qualifies as a misrepresentation
under Fla. Stat. § 627.409(1).
Central Mut. Ins. Co. v. Cropper,
296 So. 2d 69, 70-71 (Fla. 2d DCA 1974).
Therefore, the failure to
disclose the DUI ticket received two weeks before the application
date constituted a misrepresentation to State Farm within the
meaning of Fla. Stat. § 627.409(1).
The Court finds, however, that the failure to disclose the DUI
arrest was not a misrepresentation.
-12-
Cockram was never asked about
an arrest, and none of the questions called for disclosure of
arrests as a response.
The
Court
also
finds
that
the
responses
to
the
“minor
violation” and “major violation” questions do not qualify as
misrepresentations.
“An insurer may not deny coverage under this
statute, however, if the alleged misrepresentation was in response
to an ambiguous question.” Mercury Ins. Co. of Fla. v. Markham, 36
So. 3d 730, 733 (Fla. 1st DCA 2010)(citations omitted).
There was
no evidence that Anderson actually explained to Cockram what these
terms meant, or that the terms have a well-established meaning
generally understood by the motoring public. Sphinx Int’l, Inc. v.
Nat’l Union Fire Ins. Co. of Pittsburgh, Pa, 226 F. Supp. 2d 1326,
1332 (M.D. Fla. 2002)(“Under Florida law, the terms of an insurance
policy are to be used in their plain and ordinary sense and given
their everyday meaning as understood by the ‘man on the street.’”
(citations omitted)), aff’d, 412 F.3d 1224 (11th Cir. 2005).
Indeed, it takes State Farm six pages to list violations that it
has deemed to be “major” or “minor” violations, and this list is
“NOT all inclusive.”
Pl.’s Exh. 6.
Not all the State Farm
classifications are intuitive, e.g., speeding in excess of 100
miles per hour is a “minor” violation.
Additionally, there is no
evidence that all “violations” must be either “major” or “minor.”
Indeed, most of the “violations” are considered “infractions” under
Florida law.
Fla. Stat. § 318.14.
-13-
An objectively reasonable
person in Cockram’s situation could truthfully answer the question
in the negative.
(b)
Materiality
Undisclosed information submitted in a policy application is
material if the insurer would have altered the terms of the policy
had the true facts been known, or if the true facts would have
served as a basis for denying the policy application. Cont’l
Assurance Co. v. Carroll, 485 So. 2d 406, 409 (Fla. 1986).
The
Court finds that the undisclosed DUI ticket received two weeks
prior to the application was material.
The DUI ticket is a fact
which is important to both the acceptance of the risk and to the
hazard assumed by State Farm in an automobile insurance policy.
Additionally, it is undisputed that State Farm would not have
issued the automobile insurance policy had it been informed of the
DUI ticket.
(c)
Detrimental Reliance
The testimony is uncontradicted that State Farm would not have
issued the automobile insurance policy if Cockram had disclosed the
DUI ticket, and that the insurance policy was issued based upon the
information that Cockram did provide.
The Court finds that State
Farm
misrepresentation
detrimentally
relied
upon
the
decision to issue the automobile policy to Cockram.
-14-
in
its
(4)
Affirmative Defenses
None of the affirmative defenses asserted by Powers are
meritorious, and are rejected as provided herein.
There is no
evidence that State Farm’s complaint for declaratory relief was
filed for the purpose of simply delaying the resolution of the
state court lawsuit, so the affirmative defenses in Doc. #20, ¶¶ 27
and
37,
assuming
unsupported
and
they
are
rejected.
proper
There
affirmative
is no
defenses,
requirement
are
that the
insurance application be attached to the complaint, Fed. R. Civ. P.
8(a), so the affirmative defense in ¶ 28 is without merit.
Harris
v. Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir. 1999)(a document
central to and referenced by the complaint may be considered where
the contents or authenticity are not in dispute).
Additionally,
the Amended Complaint alleges sufficient facts to state a cause of
action, and the affirmative defense in ¶ 41 is without merit and
simply a denial.
See In re Rawson Food Serv., Inc., 846 F.2d 1343,
1349 (11th Cir. 1988)(“A defense which points out a defect in the
plaintiff’s prima facie case is not an affirmative defense.”).
There is no evidence before the Court that Powers requested
the statement described in Fla. Stat. § 627.4137, and in any event,
the
failure
to
provide
such
a
statement
would
not
preclude
rescission of the insurance policy, so the affirmative defense in
¶ 29 is not well founded.
Similarly, there is no evidence before
the Court that State Farm failed to comply with the requirements of
-15-
Fla. Stat. § 627.426(2)(a), but in any event, such a failure would
not preclude rescission of the insurance policy, Progressive Am.
Ins.
Co.
v.
Papasodero,
587
So.
2d
500,
502
(Fla.
2d
DCA
1991)(policy rendered null and void from the date of inception if
a material mis representation finding), so the affirmative defense
in ¶ 30 is also not well founded.
There is no evidence that State
Farm failed to adopt and implement proper and reasonable claim
handling procedures as asserted in ¶ 31, or that this would be an
affirmative defense precluding rescission.
There is no evidence
before the Court that State Farm misrepresented pertinent facts of
insurance policy provisions related to coverages, as asserted in ¶
32.
The alleged ambiguity of the policy language is not a defense
to rescission, and there has been no evidence in any event to
support ¶ 33.
There is no evidence that State Farm waived its
rights to maintain this action, so the affirmative defense in ¶ 34
lacks an evidentiary foundation. The Court finds that the facts do
not establish “unclean hands” by State Farm in the application
process, and there is no equitable reason to deny State Farm its
statutory
right of
Therefore,
the
established.
rescission
affirmative
under
defense
the
facts
of
in
¶
has
35
this
not
case.
been
Similarly, there has been no showing that State Farm
is equitably estopped from rescission as no misrepresentation
occurred by State Farm, so the affirmative defense in ¶ 36 is
rejected.
Powers has not identified any condition precedent which
-16-
has not been performed by State Farm, and therefore the affirmative
defense in ¶ 38 is not only insufficiently pled, Fed. R. Civ. P.
9(c), but is without factual support.
As discussed above, State
Farm had no affirmative obligation to conduct an investigation of
Cockram’s driving history before issuing an insurance policy.
Therefore, the affirmative defense in ¶ 39 fails as a matter of
law.
Additionally, the uncontradicted evidence is that State Farm
did check public records and that the DUI ticket was not on that
record at the time of the application process.
As also discussed
above, the misrepresentations by Cockram were intentional, but even
an unintentional misrepresentation would support rescission, Carter
v. United of Omaha Life Ins., 685 So. 2d 2, 6 (Fla. 1st DCA
1996)(“Since the statute does not contain a knowledge or intent
element, even unintentional or unknowing misstatements may prevent
recovery under a policy, if such statements alter the risk or the
likelihood of coverage.”(citations omitted)).
The affirmative
defense in ¶ 40 is rejected.
For the reasons set forth above, the Court denies Powers’
request for a declaratory judgment that Cockram is entitled to
coverage under the State Farm policy.
Cockram is not entitled to
coverage because the policy was properly rescinded under the
statute.
-17-
B.
Contractual Right of Rescission
State Farm also asserts that it was entitled to rescind the
insurance policy because the policy so provided.
Since the Court
has found a statutory right of rescission, the insurance policy is
void from the beginning and the Court need not address this basis
for rescission.
Accordingly, it is now
ORDERED:
1.
entered
Judgment on the Amended Complaint (Doc. #17) shall be
in
favor
of
plaintiff
State
Farm
Mutual
Automobile
Insurance Company and against defendant Eric Powers.
2.
Judgment on the Counterclaim (Doc. #20) by Eric Powers
against State Farm Mutual Automobile Insurance Company shall be
entered in favor of counter-defendant State Farm Mutual Automobile
Insurance Company and against counter-plaintiff Eric Powers.
3.
The Crossclaim (Doc. #20) by Eric Powers against Richard
E. Cockram is DISMISSED WITH PREJUDICE.
4.
The Clerk shall enter an amended judgment, incorporating
the Default Judgment, as follows:
Pursuant
to
the
Court’s
Order
entered
on
April
4,
2012
granting a default judgment against Richard E. Cockram and pursuant
to a non-jury trial conducted on October 10, 2012 as to Eric
Powers, the Court finds and declares the following:
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A.
State
Richard E. Cockram made a material misrepresentation to
Farm
Mutual
Automobile
Insurance
Company
during
his
application process for automobile insurance by failing to disclose
that he had received a ticket for Driving Under the Influence on
August 15, 2008;
B. Based upon the information provided by Richard E. Cockram,
State Farm Mutual Automobile Insurance Company issued a personal
automobile liability policy, bearing policy number 684 7953-B29-59,
to Richard E. Cockram.
State Farm Mutual Automobile Insurance
Company would not have issued this policy to Richard E. Cockram if
it had known of the misrepresentation regarding the ticket for
Driving Under the Influence issued on August 15, 2008;
C.
Based upon the material misrepresentation, State Farm
Mutual Automobile Insurance Company properly rescinded the personal
automobile liability policy bearing policy number 684 7953-B29-59,
to Richard E. Cockram;
D.
State Farm Mutual Automobile Insurance Company does not
owe any duty or obligation to defend or indemnify Richard E.
Cockram for any liability and damages that may be assessed or
awarded against Richard E. Cockram in the negligence lawsuit filed
by Eric Powers against Richard E. Cockram in the Circuit Court of
the 20th Judicial Circuit in and for Hendry County, Florida bearing
Case No: 10-865-CA;
-19-
E. Richard E. Cockram and Eric Powers are estopped from
pursuing a claim, defense and/or indemnity action against State
Farm Mutual Automobile Insurance Company for damages arising from
the automobile accident with Defendant Eric Powers which occurred
on September 28, 2008; and
F.
The Crossclaim is dismissed with prejudice.
4.
The Clerk is further directed to terminate all deadlines
and to close the file.
DONE AND ORDERED at Fort Myers, Florida, this
October, 2012.
Copies:
Counsel of record
-20-
16th
day of
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