Third District Court of Appeal

State of Florida 

Opinion filed August 18, 2021.

Not final until disposition of timely filed motion for rehearing.

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No. 3D20-1383

Lower Tribunal No. 17-1852

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Jermaine Nembhard and Donnette Nembhard,

Appellants,

vs.

Universal Property and Casualty Insurance Company,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Martin 

Zilber, Judge.

Giasi Law, P.A., and Melissa A. Giasi and Erin M. Berger (Tampa), 

for appellants.

Groelle & Salmon, P.A., and Andrew A. Labbe (Tampa); and Russo 

Appellate Firm, P.A., and Elizabeth K. Russo, for appellee.

Before HENDON, GORDO, and BOKOR, JJ. 

HENDON, J. 
2

Jermaine and Donnette Nembhard (“Homeowners”) appeal from a 

summary judgment in favor of Universal Property and Casualty Insurance 

Company (“Universal” or “insurance company”). We affirm. 

Relevant Facts and Procedural Background

The Homeowners applied for insurance with Universal in August 

2016. The application for insurance required the homeowners to indicate if 

they had filed any loss claims within the past five years.1

 The Homeowners 

did not disclose on the application that they had two earlier water loss 

claims with their prior insurer within the past two years and had collected 

payments for those claims. 

In October 2016, the Homeowners filed a claim for water and roof 

damage allegedly caused by Hurricane Matthew. Universal accepted 

coverage and issued payment for the claim in the amount of $1,324.60. 

The Homeowners disputed the amount. In November 2016, the insurance 

company cancelled the policy, stating the damage claimed by the 

Homeowners was not a covered hazard, was not a result of any roof 

opening caused by the windstorm (one of the policy exclusions), and cited

the deteriorated condition of the Homeowners’ roof. 

1 The application for insurance asks, “Indicate number of losses reported 

by any prospective insured within the past five years.” The Homeowners 

admit that they checked the box for “none” and did not indicate any 

previous claims.
3

The Homeowners subsequently sued Universal for breach of 

contract. During Universal’s investigation of the claim, Universal discovered 

that at the time the Homeowners applied with Universal, they had had two 

prior water damage claims in 2015. The underwriting guidelines did not 

allow an HO3 homeowners policy, such as the one obtained by the 

Homeowners, to be issued for a property with prior water losses. 

Universal then moved for summary judgment alleging there was no 

policy in effect and thus no future financial recovery was possible for the 

Homeowners. The Homeowners responded that issues of material fact 

remained, and that summary judgment was inappropriate as Universal 

waived the defense of material misrepresentation because it had not raised 

it as an affirmative defense in its responsive pleading. Further, the 

Homeowners pointed out that the insurance company paid the claim and 

accepted further premiums despite its knowledge of the Homeowners’ 

failure to indicate the two prior water loss claims. At that point, they argued, 

the insurance company could have elected to exercise its right to rescind 

the policy pursuant to section 627.409(1), Florida Statutes, but did not. The 

Homeowners argued that Universal’s post-loss behavior amounted to 

waiver of its right to rescind and acted to ratify the Homeowners’ alleged 

misrepresentation in the insurance application.
4

At the conclusion of the summary judgment hearing, the trial court 

granted Universal’s motion, stating;

Defendant has met the burden of establishing that there is no 

genuine issue of material fact and that Plaintiffs Jermaine 

Nembhard and Donnette Nembhard failed to disclose two prior 

water losses within their application for insurance submitted to 

Defendant Universal Property & Casualty Insurance Company 

in connection with policy of insurance number 1501-1604-1960 

(the "Policy").

Plaintiffs Jermaine Nembhard and Donnette Nembhard made 

material misrepresentations, omissions, concealment of fact, or 

incorrect statements on the application for insurance submitted 

to Defendant when they failed or refused to disclose two prior 

water losses reported to Homeowners Choice Property & 

Casualty Insurance Company during 2015.

The misrepresentations, omissions, concealment of facts, or 

incorrect statements on the application were material to the 

Defendant Universal Property & Casualty Insurance Company's 

acceptance of the risk because it would not have issued the 

Policy had the true facts been known.

As such, Policy of insurance 1501-1604-1960 ("Policy") issued 

to Plaintiffs Jermaine Nembhard and Donnette Nembhard is 

void ab initio.

The Homeowners present three issues on appeal. First, they assert 

that summary judgment was improper because the insurance company did 

not plead the defense of misrepresentation, raising this for the first time in 

its summary judgment motion. Next, they argue that summary judgment 

was improper because genuine issues of material fact remain as to 

whether Universal’s post-loss behavior waived rescission and materiality. 
5

Last, the Homeowners argue that the final judgment was improper because 

the insurance company’s affidavit was insufficient as a matter of law and 

should have been stricken. 

Our standard of review of an order granting summary judgment is de 

novo. See Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001); 

Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 

2000).

On December 31, 2020, the Florida Supreme Court amended Florida 

Rule of Civil Procedure 1.510, aligning Florida’s summary judgment 

standard with that of the federal courts pursuant to Rule 56 of the Federal 

Rules of Civil Procedure. In re Amendments to Florida Rule of Civil 

Procedure 1.510, 309 So. 3d 192 (Fla. 2020). Under this new summary 

judgment standard, effective May 1, 2021, “the mere existence of some 

alleged factual dispute between the parties will not defeat an otherwise 

properly supported motion for summary judgment.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242 (1986). The hearing on Universal’s motion for 

summary judgment was held was held in August 2020 and predated both 

the amendment and effective date of the new summary judgment rule. We

therefore review the order on appeal applying the summary judgment 

standard that existed at the time of the hearing. 
6

Discussion

We first address the Homeowners’ argument that it was error to grant 

summary judgment based on Universal’s affirmative defense of 

misrepresentation raised for the first time in a motion for summary 

judgment rather than in a responsive pleading, relying on Bank of N.Y. 

Mellon v. Bloedel, 236 So. 3d 1164, 1166-1167 (Fla. 2d DCA 2018), among 

others, which holds that issues not raised within the pleadings of a civil 

controversy are ordinarily deemed waived. 

We acknowledge the rule that affirmative defenses must be pleaded 

either in the answer or as separate affirmative defenses and, if not 

pleaded, the issue is deemed waived. See Fla. R. Civ. P. 1.140(h)(1). 

There is, however, an exception to that rule, which is that an affirmative 

defense can be tried by consent. When an issue is tried by express or 

implied consent, that issue can be treated in all respects as if it had been 

raised in the pleadings. Di Teodoro v. Lazy Dolphin Dev. Co., 418 So. 2d 

428, 429 (Fla. 3d DCA 1982). More specifically: 

When issues not raised by the pleadings are tried by express or 

implied consent of the parties, they shall be treated in all 

respects as if they had been raised in the pleadings. Such 

amendment of the pleadings as may be necessary to cause 

them to conform to the evidence and to raise these issues may 

be made upon motion of any party at any time, even after 

judgment, but failure so to amend shall not affect the result of 

the trial of these issues. If the evidence is objected to at the trial 
7

on the ground that it is not within the issues made by the 

pleadings, the court may allow the pleadings to be amended to 

conform with the evidence and shall do so freely when the 

merits of the cause are more effectually presented thereby and 

the objecting party fails to satisfy the court that the admission of 

such evidence will prejudice the objecting party in maintaining 

an action or defense upon the merits.

Fla. R. Civ. P. 1.190(b); Twenty-Four Collection, Inc. v. M. Weinbaum 

Const., Inc., 427 So. 2d 1110, 1112–13 (Fla. 3d DCA 1983) (stating any 

issue, whether denominated an affirmative defense or a counterclaim, may 

be tried by implied consent); Massey-Ferguson, Inc. v. Santa Rosa Tractor 

Co., 366 So. 2d 90 (Fla. 1st DCA 1979) (same); Paul Gottlieb & Co. v. Alps 

S. Corp., 985 So. 2d 1, 5 (Fla. 2d DCA 2007) (same). 

With that in mind, the record shows that Universal filed its motion for 

summary judgment on June 12, 2019, in which it asserted the defense of 

false statement in the insurance application. The summary judgment 

hearing was held fourteen months later, in August 2020. During that 

interim, both parties engaged in substantial discovery including the very 

issue of the Homeowners’ omissions in the insurance application, to which

fact the Homeowners admitted in their depositions. Once discovery was 

complete, and two days before the August 20, 2020 summary judgment 

hearing, the Homeowners filed their full substantive response on the merits 
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and at that time objected to the affirmative defense having been asserted in 

the summary judgment motion rather than the answer to the complaint. 

After fourteen months of discovery that specifically included the issue 

of the Homeowners’ insurance application omission, no one could claim 

they were surprised. The Homeowners’ omission of the prior loss claims 

had been a theme of discovery for months and was argued at the summary 

judgment hearing. When an issue is so tried, it is treated in all respects as 

if raised by the pleadings without the necessity of a motion to amend the 

pleadings to conform to the evidence. Di Teodoro, 418 So. 2d 428 (Fla. 3d 

DCA 1982). The trial court determined the issue was before it and ruled on 

its merits. The Homeowners’ procedural objection to the introduction of this 

issue as being beyond the scope of the original pleadings is form over 

substance, as there is no dispute regarding the fact that the Homeowners 

omitted prior loss claim information.

The Homeowners’ assert that there is a genuine factual dispute 

whether their omission on the application was material. We disagree. An 

insurance company has the right to rely on an applicant's representations 

in an application for insurance and is under no duty to inquire further, New 

York Life Insurance Company v. Nespereira, 366 So. 2d 859 (Fla. 3d DCA 

1979), unless it has actual or constructive knowledge that such 
9

representations are incorrect or untrue. N. Miami Gen. Hosp. v. Cent. Nat'l 

Life Ins. Co., 419 So. 2d 800, 802 (Fla. 3d DCA 1982) (citing Hardy v. Am.

S. Life Ins. Co., 211 So. 2d 559 (Fla.1968); Joe's Creek Indus. Park, Inc. v. 

Loyal Am. Life Ins. Co., 251 So. 2d 348 (Fla. 2d DCA 1971)); see also

Indep. Fire Ins. Co. v. Arvidson, 604 So. 2d 854, 856 (Fla. 4th DCA 1992) 

(same). The record shows that at the time the Homeowners made their 

application with Universal, the insurance company did not have actual or 

constructive knowledge that the Homeowners did not disclose prior water 

loss claims. 

The Florida Supreme Court has held that when an insurer would 

have altered the policy's terms had it known the true facts, or if the 

misstatement materially affects risk, a non-intentional misstatement in an 

application will prevent recovery under an insurance policy. See Cont’l

Assurance Co. v. Carroll, 485 So. 2d 406, 409 (Fla. 1986), citing Life Ins.

Co. v. Shifflet, 201 So. 2d 715, 719 (Fla. 1967); see also Mut. Fire Ins. Co. 

v. Kramer, 725 So. 2d 1141, 1142 (Fla. 2d DCA 1998) (holding that in order 

for an insurer to rescind an insurance policy based on a misrepresentation, 

the misrepresentation must be material; however, the insurer does not 

need to establish that it was intentional). 

Further, Section 627.409(1), (2020), Florida Statutes, provides:
10

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 not a warranty. Except as provided in 

subsection (3), 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 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.

Universal indicates in the record that its policy was not to issue that 

particular (HO3) policy if there were prior claims. On this basis the trial 

court properly found that the Homeowners’ failure to disclose was material. 

Id.; Continental, 485 So. 2d at 409.

The Homeowners next assert that genuine issues of material fact 

remain as to whether the insurance company waived its right to rescind the 

policy by its post-loss actions. They argue that by accepting the claim and 

issuing payment, and by “accepting premiums despite having actual or 

constructive knowledge at the time of adjustment of the prior loss claims,” 
11

Universal ratified the policy and waived its rescission rights. Neither the 

record nor Florida law supports this conclusion. 

The record indicates that it was Universal’s claims department that 

obtained the underwriting report that revealed the Homeowners’ prior 

losses, and underwriting was not made aware of the prior losses until after 

the policy had been cancelled. The notice of cancellation was sent to the 

Homeowners, to the agent, and to the mortgage company. Because the 

mortgage company had paid the premium for the policy, as a matter of 

standard procedure the unearned premium was returned to the mortgage 

company. These facts do not amount to Universal’s post-loss “ratification” 

of the policy or a waiver of its rescission rights.

Under Florida law, Universal could cancel the policy after discovering 

the Homeowner’s omission of prior loss claims. An insurer has the right to 

unilaterally rescind an insurance policy on the basis of misrepresentation in 

the application for insurance. Certain Underwriters at Lloyd's London v. 

Jimenez, 197 So. 3d 597, 601 (Fla. 3d DCA 2016) (citing Fabric v. 

Provident Life & Acc. Ins. Co., 115 F. 3d 908, 912 (11th Cir.1997). The 

misrepresentation need not be fraudulently or knowingly made but need 

only affect the insurer's risk or be a fact which, if known, would have 

caused the insurer not to issue the policy or not to issue it in so large an 
12

amount. Id. (citing First Nat'l Bank Holding Co. v. Fid. & Deposit Co. of 

Maryland, 885 F. Supp. 1533, 1535 (N.D. Fla. 1995)); see also, Mora v. 

Tower Hill Prime Ins. Co., 155 So. 3d 1224, 1227–28 (Fla. 2d DCA 2015)

(holding the insurer must show that the insured's statement is a 

misrepresentation, that it is material, and that the insurer detrimentally 

relied on it). 

Finally, we find no merit to the Homeowners assertion that the 

insurance company’s affidavit should have been stricken as insufficient as 

a matter of law. Even if the insurance company’s representative, Mr. 

Villasenor, did not have personal knowledge of the information or 

documents to which he attested regarding the Homeowners’ omissions on 

the application for insurance, striking his deposition would have been futile 

because the Homeowners themselves confirmed and admitted to the 

omission in their depositions. 

For the reasons discussed above, we conclude that summary 

judgment was proper, and affirm. 

Affirmed.