ORDER DENYING PLAINTIFF'S POST-TRIAL MOTIONS

PATRICIA A. SEITZ, District Judge.

On November 24, 2007, Eurys Gamez's cousin, Alfredo Hassun, loaned Gamez's new 32-foot Glasstream fishing yacht (the "Vessel") to a recent acquaintance, Alexis Suarez, for a fishing trip. Suarez and the Vessel then mysteriously disappeared and were never heard from again. This case arises out of Defendant Ace American Insurance Company ("Ace Insurance")'s denial of insurance coverage for the loss of the Vessel.

The jury found that Gamez had proven his claim but could not recover because Ace Insurance had established as an affirmative defense that Gamez had intentionally misrepresented a material fact in his insurance application. Gamez now moves to set aside the jury verdict, arguing that there was no admissible evidence from which a reasonable jury could have found that Gamez's misrepresentations had "increased the hazard by any means within the control of the insured." [DE-135; DE-136.] Because Florida law does not require that misrepresentations increase the hazard, and because there was sufficient evidence at trial for a reasonable jury to conclude that Gamez's intentional misrepresentations affected Ace Insurance's ability to assess the risks it was insuring, both of Gamez's motions are denied.

A. LEGAL STANDARD

Gamez moves for judgment as a matter of law under Rule 50(b) and alternatively for a new trial under Rule 59(a). A court must rule on both motions. See Fed. R. Civ. P. 50(c).

Under Rule 50(b), Gamez asks the Court to set aside the jury's verdict as to Ace Insurance's affirmative defense but to allow the jury's verdict to stand as to Gamez's claim. In resolving a Rule 50(b) motion, a court "should consider all the evidence—not just that evidence which supports the non-mover's case—but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion[i should be denied." Watts v. Great Ati. Pac. Tea Co., Inc., 842 F.2d 307, 309-10 (11th Cir. 1988) (citation omitted).

In the alternative, Gamez asks the Court to set aside the jury verdict entirely and order a new trial under Rule 59(a), which imposes a more lenient standard than Rule 50(b). "In ruling on a motion for new trial, the trial judge is permitted to weigh the evidence, but to grant the motion he must find the verdict contrary to the great, not merely the greater, weight of the evidence." Watts, 842 F.2d at 310 (citation omitted).

B. APPLICABLE LAW

The jury, which Gamez agrees was properly instructed [DE-135 at 8-10], found for Gamez on his breach-of-contract claim and for Ace Insurance on its affirmative defense that Gamez had fraudulently misrepresented material facts on his insurance application. Gamez's primary argument1 is that there was no admissible evidence at trial from which a reasonable jury could determine which hazard resulted in the loss of the Vessel or that the misrepresentations could have increased that hazard. According to Gamez, any fraudulent misrepresentation only voids the insurance policy if it "increased the hazard by any means within the control of Gamez or Hassun." See Fla. Stat. § 627.409(2). Thus, without being able to determine which hazard had befallen the Vessel, a reasonable jury could not find that Gamez or Hassun had increased that hazard. Gamez further argues that, even if the hazard is simply characterized as that of a "missing vessel," none of Gamez's or Hassun's misrepresentations could have increased that hazard.

Gamez applies the incorrect legal standard. Florida law provides:

Fla. Stat. § 627.409 (2013). There are thus two legal distinct theories an insurer can assert to deny coverage: essentially, fraudulent inducement and material breach. A "breach or violation by the insured of any warranty, condition, or provision" only excuses the insurer from paying — essentially, it only constitutes a material breach—if "such breach or violation increased the hazard by any means within the control of the insured." For example, if the insured violated the insurance policy by keeping too many crew members, that might increase the likelihood of mutiny. Fireman's Fund Ins. Co. v. Cox, 742 F.Supp. 609, 611 (M.D. Fla. 1989), aff'd, 892 F.2d 87 (11th Cir. 1989). But an insured's failure to update a plane's airworthiness certificate does not void coverage for a plane crash caused by pilot error. Pickett v. Woods, 404 So.2d 1152 (Fla. 5th DCA 1981).

In contrast, the problem with misrepresentations in an insurance application is not that they increase the risk of loss, but that they interfere with the insurer's ability to assess the risk of loss before deciding how much coverage to provide and at which premium. Therefore misrepresentations are subject to a different standard: essentially, they must affect the insurer's liability to pay a certain amount of money. They need not increase the hazard.

A misrepresentation in the insurance policy cannot be characterized as a "breach or violation by the insured of any warranty, condition, or provision" under section 627.409(2). Section 627.409(1) specifically states that a "statement or description made by or on behalf of an insured . . . in an application for an insurance policy . . . is a representation and not a warranty" and then delineates exactly what standard applies for misrepresentations. Because section 627.409(1) already lays out a specific standard for misrepresentations, the Court will not shoehorn misrepresentations into section 627.409(2) such that the increase-thehazard requirement might apply.

The parties' contract only alters this analysis by requiring that any misrepresentations be intentional; nowhere does the contract itself require that the misrepresentations increase the hazard. (See Order Denying Def.'s Mot. for Summ. J. [DE-54].) Thus, as the jury was correctly instructed:

[DE-128 at 9-10.]

C. EVIDENCE AT TRIAL

The evidence at trial was plainly sufficient for the jury to find that Gamez's and Hassun's misrepresentations were intentional and material. Viewed in the light most favorable to Ace Insurance, the evidence showed that Gamez and Hassun made the following intentional misrepresentations in the insurance application:

A reasonable jury could easily infer that these intentional misrepresentations affected Ace Insurance's liability to pay a certain amount of money. Based on the insurance application, Ace Insurance thought that one person with four years of boat-ownership experience would keep the Vessel at his home and would be the only primary operator. According to its underwriter Sheryl Johnson, Ace Insurance would have charged a higher premium if it had known otherwise. (Trial Tr. September 11, 2013 [DE-147] 86:24-89:20.) This comports with common sense; a single experienced owner-operator can keep track of a yacht in his driveway. With two people, each has less "skin in the game" than a single person would, and the universe of things that could go wrong increases significantly: the boat is probably in use more often, it likely travels back and forth between different locations, there is a risk of miscommunication between the two persons, and so forth. One might even loan the Vessel to an acquaintance that the other might not trust.

D. CONCLUSION

Because the jury's verdict as to Ace Insurance's affirmative defense was founded on a legally sufficient basis and was not contrary to the great weight of the evidence, there is no basis for either judgment as a matter of law or a new trial. Accordingly, it is

ORDERED that

3. This case is CLOSED. All pending motions not otherwise ruled upon are DENIED AS MOOT.

DONE AND ORDERED.