685 So. 2d 1002

Bruce A. WONG KEN, as Personal Representative of the Estate of Pamela R. Wong Ken, Deceased, Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, Appellee.

No. 96-1230.

District Court of Appeal of Florida, Third District.

Jan. 8, 1997.

*1003Rhea P. Grossman, Miami, for appellant.

Hardeman & Suarez, Miami; Russo & Talisman, Coconut Grove, and Laura P. Denault, for appellee.

Before SCHWARTZ, C.J., and COPE and SHEVIN, JJ.

SCHWARTZ, Chief Judge.

The cacophony of Hurricane Andrew is over but its dissonance lingers on, and on and on. This case arises from the extensive damage Andrew inflicted on a very expensive home in Dade County owned by Wong Ken’s mother. Pursuant to its homeowners’ policy, State Farm voluntarily paid over $1,100,000 to repair and replace the structure and contents. Afterward, however, Wong Ken, as the representative of his mother’s estate, claimed and received some $85,000 under an insuring agreement which provided for reimbursement of “additional living expenses” incurred as a result of the storm. The carrier subsequently discovered evidence that the “living expenses” claim was fraudulent and brought the present case to rescind the policy and for the return both of the $85,000 and the $1,100,000 it had paid for property damage. The action was.based on the following policy provision:

2. Concealment or Fraud. This policy is void as to you and any other insured, if you or any other insured under this policy has intentionally concealed or misrepresented any material fact or circumstance relating to this insurance, whether before or after a loss, [emphasis supplied]

After extensive discovery, the carrier moved for summary judgment on liability in its favor. The insured has taken this non-final appeal, pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), from an order granting the motion. We affirm.

There is no question that the clause which voids coverage if the insured makes an intentional misrepresentation “after a loss”— that is, as here, in making a claim — is valid and enforceable. See Chaachou v. American Cent. Ins. Co., 241 F.2d 889 (5th Cir.l957)(applying Florida law); American Employers’ Ins. Co. v. Taylor, 476 So.2d 281 (Fla. 1st DCA 1985)(applying provision to conduct in making claim even when anti-fraud provision is silent as to its application after loss), dismissed, 485 So.2d 426 (Fla.1985); cf. Wendel v. State Farm Fire & Casualty Co., 435 So.2d 284 (Fla. 5th DCA 1983)(contrarily refusing to extend silent clause to misrepresentations after loss), pet. for review denied, 447 So.2d 888 (Fla.1984).

Moreover, we agree that Wong Ken’s violation of that portion of the clause was established as a matter of law. The record shows uncontradictedly that, although Wong Ken in fact lived in the damaged home throughout the repair process, he fraudulently represented otherwise to the company, backing his temporarily successful claim with “leases” and a check representing purported rental payments for alternative housing — all of which were entirely bogus. Hence, the *1004order granting the motion for summary judgment on liability1 was correct, Chaachou, 241 F.2d at 889, and is affirmed. The cause is remanded for determination of the relief to which the carrier is entitled.2

Affirmed, remanded.

SHEVIN, J., concurs.

COPE, Judge

(specially concurring).

I concur with all except the dicta contained in items (a) through (d) of footnote 1. The parties have not addressed any of those issues in this appeal.

Wong Ken v. State Farm Fire & Casualty Co.
685 So. 2d 1002

Case Details

Name
Wong Ken v. State Farm Fire & Casualty Co.
Decision Date
Jan 8, 1997
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685 So. 2d 1002

Jurisdiction
Florida

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