PBCBA BAR BULLETINS pbcba_bulletin_january 2019 - Page 14

PROBATE C o r n e r Verification Based On “To The Best Of My Knowledge And Belief” May Be No Verification At All (Part II of III) DAVID M. GARTEN The term “to the best of my knowledge and belief” is used in affidavits and court documents to indicate that statements being made are not knowingly false. Assuming your client signs a document under “knowledge and belief”, does he have a duty to verify the truth or accuracy of his statements? In Applefield v. Commercial Standard Ins. Co., 176 So. 2d 366 (Fla. 2nd DCA 1965), the court held: “It is the rule of this jurisdiction that whatever is sufficient to put a person on inquiry amounts in point of law to notice, provided there is a duty to make the inquiry and such inquiry could lead to a knowledge of facts which, under the circumstances of the particular case, calls for application of the rule in order to do equity….Means of knowledge, with the duty of using them, are in equity equivalent to knowledge itself….Where there is a duty of finding out and knowing, ignorance resulting from a negligent failure to perform the duty has the same effect in law as actual knowledge…. “A person has no right to shut his eyes or ears to information, and then say that he has no notice. The law will not permit him to remain wilfully ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand. If he has either actual or constructive information and notice sufficient to put him on inquiry, he is bound, for his own protection, to make that inquiry which such information or notice appears to direct should be made. If he disregards that information or notice which is sufficient to put him on inquiry and fails to inquire and to learn that which he might reasonably be expected to learn upon making such inquiry, then he must suffer the consequence of his neglect.”… [citations omitted]; followed Sutton Enters. Ltd. v. Santa Clara Constr. Co., 767 So. 2d 547 (Fla. 3rd DCA 2000); See also In re Estate of Donner, 364 So. 2d 742 (Fla. 3rd DCA 1978). Insurance Applications: Under §627.409, F.S., an insurer can void a policy for misstatements or omissions on an application without regard to whether they are intentional or accidental. However, an insurer who includes the modifier “to the best of his knowledge and belief” in an insurance application has agreed to a lesser knowledge standard. See Green v. Life & Health of America, 704 So. 2d 1386 (Fla. 1998) (an application based on “to the best of his knowledge and belief” is not a basis to void an insurance policy so long as there were no knowing misstatements on the application); Casamassina v. United States Life Ins. Co., 958 So. 2d 1093 (Fla. 4th DCA 2007) (an omission or misrepresentation in an insurance application, when the application is completed to the best of the applicant’s knowledge and belief, is not a basis for rescission of a policy); Accord Ocean’s 11 Bar & Grill, Inc. v. Indemnity Insurance Corp. of DC, 522 F. App’x 696 (11th Cir. 2013). See also Sterling Insurance Co. v. Dansey, 81 S.E.2d 446 (Va. 1954), where the insured sued an insurance company for denial of disability benefits. The Supreme Court of Appeals of Virginia determined that the “best knowledge” language on the application excused any prevailing duty (statutory or otherwise) to investigate the accuracy of the warranty and that an PBCBA BAR BULLETIN 14 incorrect statement, innocently made, will not void the policy. Foreclosures: Fla. R. Civ. P. 1.115 contains a verification requirement for residential mortgage foreclosures. The complaint must include an oath, affirmation, or the following statement: “Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.” One of the primary purposes of this amendment was to “provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and insure that the allegations in the complaint are accurate”. [Emphasis added] See In re Amendments to the Fla. Rules of Civil Procedure, 44 So.3d 555 (Fla. 2010). Save the Date Annual Estate & Probate Seminar Tuesday, March 26, 2019 The Marriott Hotel West Palm Beach Seminar Details to Follow