ORDER
THIS CAUSE сame before the Court upon Defendant Global Liberty Insurance Company of New York’s Motion for Summary Judgment [ECF No. 24]. The Court has reviewed the Motion, the parties’ written submissions, the record, and the applicable law and has heard argument from the parties. For the reasons stated below, the Motion is denied.
I. FACTUAL BACKGROUND
This is an action for declaratory decree seeking to establish the rights and obligations of the parties under a commercial automobile insurance policy, number FHP 0725551-0 (“Policy”), issuеd by Defendant Global Liberty Insurance Company of New "York (“Global”) to Plaintiff Laboss Transportation Services, Inc. (“Laboss”). The Policy was in effect from March 12, 2014, through March 12, 2015. Specifically, Laboss seeks liability insurance coverage for injuries and damage to passenger William' Wilson, whose wheelchair flipped backwards within Laboss’s van as the van departed from a red light on March 17, 2014. The parties agree that the issues present a pure legal question. [ECF No. 71 at 1]. The facts are generally undisputed.
Laboss is a Florida company engaged in the non-emergency transportation of clients' to and from hospitals, clinics, and homes. On or before March' 12, 2014, La-boss, through its insurance agent Lucy Singer, applied for a business automobile policy with Global. In the application, La-boss listed seven drivers, including Errol Ward, the driver of the van in which Wilson was injured. Along with the application, Laboss’s insurance agent submitted driving records for the listed drivers. Global concluded that Ward was not an eligiblе driver under the proposed policy based on his driving record, including a suspension with at least one accident within three years. Global informed Singer that the policy would not be issued with Ward as a driver. That same day, Singer resubmitted Laboss’s application, this time with Ward’s
On March 13, 2014, Ward cleаred his driver license suspension and had his. driving privileges reinstated. He subsequently resumed driving patients for Laboss, although he had not yet been added as a listed driver to the Policy. Laboss asserts that it advised Singer on March 14, 2014, that Ward’s license had been reinstated and requested that he be adc|ed to the Global policy three days prior to Wilson’s accident. However, Singer did not formally request that Global add Ward to the policy until after Wilson’s accident.
On March 17, 2014, Ward was driving Wilson, a Laboss client, in a vаn—a “covered auto” under the Policy—when Wilson’s wheelchair flipped backwards as Ward accelerated the van from a stop at a red light at the intersection of 1-95 and Sheridan Street in Hollywood, Florida. Prior to the accident, Ward had fastened Wilson’s wheelchair into the van using the Q’Straint system for which he had previously received training. The following day, Singer requested that Global include Ward on Laboss’s policy, though she did not reveal the March 17 accident to Global. That same dаy, Global issued an endorsement accepting Ward as a driver on the Laboss policy.
Later that week and the following week, both Wilson’s attorney and Laboss gave notice to Global of Wilson’s accident. After investigating the claim, Global determined that there was no coverage under the Policy because “there was no automobile accident” and that the claimed loss was “not a covered event.” [ECF No.- 28-1 at 68]. Global never rescinded or canceled La-boss’s Poliсy, nor did it return any portion of the premium paid for the Policy. In fact, Global renewed the Policy for the subsequent policy period beginning on March 12, 2015, knowing that Ward was one of Laboss’s drivers. Prior to the filing of this action in November 2014, Wilson’s attorney made a verbal demand on Laboss for compensation in the amount of the $500,000 Policy limit. [ECF No. 11-1 at ¶6].
II. THE POLICY
The relevant provisions of the Policy provide as follows:
Coverage
SECTION II—LIABILITY COVERAGE
A. Coverage
We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto.” [...]
1. Who Is An Insured
The following are “insureds”: a. You for any covered “auto”.
b. Anyone else while using with your permission a covered “auto” [... ] [ECF No. 29-1 at 32] (emphasis added).
Definitions
A. “Accident” includes continuous or repeated exposure to the same conditions resulting in “bodily injury” or “property damage”.
Exclusions
B. Exclusions
This insurance does not apply to any of the following:
1. Expected Or Intended Injury “Bodily injury” or “property damage” expected or intended from the standpoint of the “insured”.
[Id. at 33],
This insurance does not apply to:
1. “Bodily injury” resulting from thе providing or the failure to provide any medical or other professional services.
[Id. at 48],
III. LEGAL STANDARD
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,
A “genuine” issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof. Harrison v. Culliver,
IV. ANALYSIS
In its Motion, Global argues that it is entitled to summary judgment on the following bases: a) Laboss misrepresented a material fact in its application for coverage under the Policy; b) the March 17, 2014 incident was not an “accident” arising out of the use or operation of a motor vehicle covered under the Policy; c) even if the incident can be considered an “accident,” the failure to properly restrain Wilson’s wheelchair should be considered “professional services” excluded under the policy; and finally d) there is no lawsuit or “claim” against Global, so this declaratory relief is premature and inappropriate. The Court finds each of these arguments unconvincing.
A. Ward’s Coverage Under the Policy
Laboss argues that Ward was a permissive driver under the Policy at the time of the March 17 accident and, there
The Policy here clearly and unambiguously defines its “insured” as (1) Laboss for any covered auto, and (2) anyone else using a covered auto with Laboss’s permission. See [ECF No. 29-1 at 32]. In fact, Global concedes that the Policy covers permissive drivers. See [ECF No. 41 at 43-44]. Based on the Policy’s broad definition, Ward qualified as an insured under the Policy at the time of thе accident as he drove the van with Laboss’s permission after his license was reinstated.
Despite the Policy’s clear language, Global maintains that Ward was not an insured driver under the Policy because he was not listed and approved by Global. However, no such requirement exists. The Policy does not limit coverage to listed and approved drivers. Rather, the Policy covers drivers who fall within its broad definition of “insured.” Even if the Court found that an ambiguity existed regarding coverage, the Court would construe that ambiguity against Global and find coverage for Laboss and Ward under the Policy.
The Court recognizes that Global has a legitimate interest in knowing who will be driving insured automobiles. However, Global’s desire to approve drivers as a condition of coverage must be made a part of the Policy.
B. Wilson’s Accident Under the Policy
As previously noted, Wilson fell as his wheelchair flipped backwards in La-boss’s van when Ward accelerated from a stop at a red light. Global argues that this did not constitute an “accidеnt” under the Policy. Global emphasizes that Ward himself stated that there was “no accident.” [ECF No. 24 at 13-14]. However, Ward’s statements and understanding of the term “accident” do riot control this Court’s application of the facts to the Policy. The Policy broadly defines “accident” to “include[ ] continuous ox repeated exposure to the same conditions resulting in ‘bodily injury’ or ‘property damage.’” [ECF No. 29-1 at 40]. But, the Policy does not affirmatively state what constitutes or does not constitute an aсcident. The Florida Supreme Court has “conclude[d] that the term ‘accident’ within a liability policy is susceptible to varying interpretations and should be construed in favor of the insured.” State Farm, Fire & Cas. Co. v. CTC Dev. Corp.,
As “accident” is not clearly defined by the instant Policy, the term is ambiguous. Therefore, the Court must construe that ambiguity against the insurer and in favor of coverage. Taurus Holdings,
C. Professional Services Exclusion
Global argues that Ward’s failure to properly, use the Q’Straint System to secure Wilson’s wheelchair in the van is excluded from coverage under the Policy’s professional servicés exclusion. Laboss responds that Ward’s services cannot be considered professional services.
Because the Policy does not define “professional services,” this Court will apply the dictionary definition of “professional;” which is “[a] person who belongs to a learned profession or whose occupation requires a high level of training and proficiency.” See Aerothrust Corp. v. Granada Ins. Co.,
Here, Global argues that Ward’s training in how to fasten and secure wheelchairs in the company’s vans renders his work “professional services” under the Policy’s exclusion. Specifically, Ward received training in the operation of the Q’Straint system for securing wheelchairs in Laboss’s vans as well as the wheelchair lift. Global further argues that Laboss’s compliance with the Broward County licensing requirements for nonemergency medical transportation services renders Ward’s work “professional services.” The requirements include such things as possessing a valid Broward County taxi and limousine driver identification card, being trained in the correct use of special wheelchair transport equipment, and receiving training in first aid and CPR. See [ECF No. 24 at 17-18].
The Court has reviewed the Q’Straint Instruction Guide [ECF No. 24-1] and is unconvinced that Ward’s transportation of disabled passengers falls under the “professional services” exclusion of the Policy, The Court must look specifically at the act of securing Wilson’s wheelchair. See Lindheimer,
The record does not reflect that Ward’s use of the Q’Straint system involved “predominantly mental or intellectual” skills, nor did he engage in a “long period of speciаlized intellectual instruction.” See Gulf Ins. Co.,
D. Material Misrepresentation
Global argues that there is no coverage for Wilson’s accident because La-boss made a material misrepresentation in its insurance application by removing Ward from its list of drivers while still allowing Ward to drive. Global notes that Laboss did not disclose the March 17 accident to Global until after adding Ward to the policy on March 18. Laboss argues that Ward’s omission as a listed driver is immaterial because he still qualified as a permissive driver under the Policy at the time of the accident because he had- a valid driver’s license and was operating an automobile covered by the Policy. Laboss further argues that Global waived any reliance on the alleged misrepresentation because Global did not charge an additional premium and subsequently renewed La-boss’s Policy in 2015 even after receiving notice of the accident. Seé [ECF No. 41 at 32, 55].
Florida law provides that a “misrepresentation, omission, concealment of fact, or incorrect statement” in an insurance application may prevent recovery under the policy only if any of the following apply:
(a) The misrepresentation, .omission, concealment, or statement is fraudulent or is material 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 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). “Even unintentional misrepresentations or omissions in an application for insurance will prevent a recovery on a pоlicy if the insurer proves that the misrepresentations, or. omissions are material to the risk taken or that the insurer would have altered the policy or would not have issued the policy had the true facts been revealed.” Jackson Nat’l Life Ins. Co. v. Proper,
However, an insurer can forfeit its right of rescission. Echo v. MGA Ins. Co., Inc.,
“Where the evidence is clear and uncontradicted[,] the materiality of the misrepresentation shall be decided as a question of law.” de Guerrero v. John Hancock Mut. Life Ins. Co.,
The Court finds that Laboss’s failure to timely identify Ward’s status as its driver was not material. As the Court has .already concluded, the Policy does not limit coverage to listed drivers or drivers approved by Global. As Ward was a lawful and permissive driver under the Policy at the time of the accident, the alleged misrepresentations and/or omissions by Laboss and Singer were not material—though unfortunate and unnecessary—because Ward was then a covered driver.
Further, the Court finds that Global waived its rescission claim under § 627.409 through its subsequent actions. Even after having knowledge of the accident and Ward’s status as a Laboss driver, Global did not remove Ward from the Policy. -Nor did Global assess Laboss an additional premium to keep Ward on the Policy. See [EOF No. 41 at 32, 55]. Armed with the relevant information, Global even renewed the Policy in 2015 with Ward as a listed driver. [Id. at 32]. Therefоre, it is reasonable to conclude that Global itself did not find Laboss’s purported misrepresentations and omissions to be material. Accordingly,' the Court finds that Global waived its claim for rescission.
E. Claim against Global
Finally; Global argues that this suit is inappropriate because there does not exist any underlying suit that Global must defend, nor is there a demand or claim that an accident occurred. [ECF No.
While it is true that Wilson has not yet filed a civil action against Laboss, the record is clear that Wilson’s attorney and Laboss made claims upon Global soon after the accident and that Global denied the claim. Given that Laboss officially denied coverage, it is unclear' how the Court can now find that there :was never a dispute betwé'en the parties. Prior to the filing of this suit, Wilson’s attorney also advised Laboss’s attorney that Wilson was seeking compensation in the amоunt of the $500,000 Policy limit. [ECF No. 11-1 at ¶ 6]. Wilson’s attorney submitted a letter to Global on July 15, 2015, in which Wilson again requested coverage under the Policy. [ECF No. 52-2]. As it is clear that a controversy existed between the parties before the filing of this suit, the Court is satisfied that Laboss’s claims against Global are not premature under the Declaratory Judgment Act.
V. CONCLUSION
Accordingly, it is
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment [ECF No. 24] is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida this 26th day of May, 2016.
Notes
. On July 15, 2015, Wilson's attorney subsequently submitted a demand letter to Global, again seeking compensation in the аmount of the Policy limit. [ECF No. 52-2],
. The Policy otherwise does not define "accident.”
. The Policy does not define “professional services.”
, Professional services have been found to include certain integral tasks performed by medical technicians, Alpha Therapeutic Corp. v. St. Paul Fire & Marine Ins. Co.,