Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT SUNITA ROBERTS, Appellant, v. DIRECT GENERAL INSURANCE COMPANY, Appellee. No. 2D21-195 March 30, 2022 Appeal from the County Court for Hillsborough County; Michael C. Bagge-Hernandez, Judge. Chad A. Barr, of Chad A. Barr Law, Altamonte Springs, for Appellant. William J. McFarlane, III, of McFarlane Law, Coral Springs, for Appellee. STARGEL, Judge. Sunita Roberts challenges a final summary judgment rendered in favor of Direct General Insurance Company in this action for declaratory relief. Although we affirm the entry of final summary judgment, we write to address the trial court's findings pertaining to the admissibility of the deposition testimony of Direct General's underwriting representative, which the court found was admissible under the business records exception to the hearsay rule.1 On April 6, 2017, Roberts filled out and submitted Direct General's online application for automobile insurance. In the "Driver Information" section of the application, Roberts listed herself as the only driver of the insured vehicle.2 Direct General issued the policy effective April 10, 2017. On March 10, 2018, Roberts submitted a renewal application, again listing herself as the only driver of the insured vehicle. In June 2018, Roberts was injured in an auto accident and filed a claim for Personal Injury Protection (PIP) benefits under the policy. On July 9, 2018, Direct General sent Roberts a letter informing her that her policy "ha[d] been rescinded and is null and 1 As to all other issues, we affirm without further discussion. 2 That section of the application stated: "DRIVER INFORMATION: Complete for Applicant, spouse and all persons age 14 and older residing with Applicant (licensed or not). Also list any other regular operators of vehicles on this application, Including children away from home or in college (licensed or not)." 2 void because of your material misrepresentation − specifically due [to the] failure to disclose household members and/or regular drivers 14 and older at new business." Roberts filed suit seeking a declaration that Direct General did not have a valid basis to rescind the policy and was required to pay her PIP claim. Direct General filed a counterclaim alleging that a valid basis for rescission existed because Roberts failed to disclose on her application that she lived with her brother, Michael Lawrence, and that had she disclosed him, her insurance premium would have been higher. After a hearing on the parties' cross- motions for summary judgment, the trial court entered final summary judgment in favor of Direct General. Section 627.409(1), Florida Statutes (2017), provides that a misrepresentation, omission, concealment of facts, or incorrect statement on an insurance application may prevent recovery if (a) the misrepresentation, omission, concealment of facts, or incorrect statement is fraudulent or material to the risk being assumed or (b) had the insurer known the true facts, the insurer in good faith either would not have issued the policy or would have done so only on different terms. "[T]he determination to be made under section 3 627.409(1)(b) regarding how an insurer would have acted had it known the true facts is 'one of fact requiring testimony by the insurer's representatives' . . . ." Moustafa v. Omega Ins. Co., 201 So. 3d 710, 715 (Fla. 4th DCA 2016) (quoting Singer v. Nationwide Mut. Fire Ins. Co., 512 So. 2d 1125, 1129 (Fla. 4th DCA 1987)). In support of its summary judgment motion, Direct General relied upon the deposition testimony of its underwriting manager, Lisa Robison. Based on her review of the underwriting file, Robison testified that after the claims department notified the underwriting department that there was an additional person in Roberts' household, an employee in the underwriting department re-ran Roberts' application and determined that if Mr. Lawrence was added to the policy as an excluded driver, the premium would increase from $1,500 to $1,637. The trial court found that this testimony was admissible under the business records exception because Robison "testified to knowledge of the system used to generate the quote, how the information was entered into the system, and could claim personal knowledge from a review of the records." Based on this testimony, the court ultimately determined that "[Direct General] provided the required testimony to establish [that Roberts'] 4 failure to disclose was a material misrepresentation because [Direct General] would not have issued the policy on the same terms." Direct General did not, however, include any documents from the underwriting file as part of its summary judgment evidence. It relied exclusively on Robison's deposition testimony to show that the insurance premium would have been higher had Roberts disclosed Mr. Lawrence on her application. But "[w]hile the business-records exception . . . allows the admission of '[a] memorandum, report, record, or data compilation,' it does not authorize hearsay testimony concerning the contents of business records which have not been admitted into evidence." Thompson v. State, 705 So. 2d 1046, 1048 (Fla. 4th DCA 1998) (quoting § 90.803(6)(a), Fla. Stat. (1995)). Because Direct General did not offer any records from the underwriting file, the trial court's reliance on the business records exception in establishing the admissibility of Robison's deposition testimony was misplaced.3 See, e.g., Sas v. 3 It cannot be reasonably argued that the transcript of Robison's deposition itself was a "business record" within the meaning of section 90.803(6)(a), Florida Statutes (2019). After all, to establish admissibility of a business record under the exception, the proponent must show, among other things, that "the record was made at or near the time of the event." Yisrael v. State, 993 So. 2d 5 Fed. Nat'l Mortg. Ass'n, 112 So. 3d 778, 779 (Fla. 2d DCA 2013) (holding that trial court erroneously allowed witness to testify about the contents of loan servicer's business records without having first admitted those business records); Cullimore v. Barnett Bank of Jacksonville, 386 So. 2d 894, 895 (Fla. 1st DCA 1980) ("The business records exception is . . . inapplicable because there were no records or reports offered into evidence; there was only testimony concerning communications made between the dispatcher and the deputy."). Nevertheless, we affirm the trial court's entry of final summary judgment based on our conclusion that Robison's testimony was admissible because she was competent to testify from personal knowledge. Robison is the manager of Direct General's underwriting department, and her testimony reflected her familiarity with Direct General's underwriting guidelines, the program used to calculate insurance premiums, and the process for 952, 956 (Fla. 2008). Here, the record reveals that Direct General ran the additional premium quote and reached the decision to rescind the policy sometime between Roberts' submission of the PIP claim in the aftermath of the June 2018 accident and the letter dated July 9, 2018, notifying her of the decision. Robison's deposition was conducted several months later on March 20, 2019. 6 running additional premium quotes. And prior to her deposition, she reviewed the underwriting file in this case. This provided a sufficient basis for Robison to testify from personal knowledge on this issue. See Progressive Exp. Ins. Co. v. Camillo, 80 So. 3d 394, 399 (Fla. 4th DCA 2012) ("An affiant's personal knowledge may be based on his or her review of the underwriting file."); cf. Moustafa, 201 So. 3d at 715-16 (affirming summary judgment for insurer in rescission case based in part on deposition testimony of an assistant vice president in the insurer's underwriting department). Thus, Robison's deposition testimony constituted admissible summary judgment evidence irrespective of the applicability of the business records exception. Affirmed. SILBERMAN and VILLANTI, JJ., Concur. Opinion subject to revision prior to official publication. 7