GARY A. POLIAKOFF, APPELLANT,
v.
NATIONAL EMBLEM INSURANCE COMPANY, AN ILLINOIS CORPORATION, APPELLEE
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Poliakoff sued National Emblem Insurance for fraudulent misrepresentation after the company allegedly promised to sell him a non-cancellable policy but cancelled it within two months. The trial court dismissed the complaint under the Statute of Frauds, but the appellate court reversed, holding that a fraud claim states a valid cause of action and is not barred by the statute.
The court held that the complaint stated a valid cause of action in tort for fraudulent misrepresentation. The Statute of Frauds does not apply to bar a fraud claim, as the action is in tort rather than upon an oral agreement. The essential elements of fraud—a false statement of fact, known to be false, made to induce reliance, with actual reliance and resulting damages—were adequately pleaded.
[1] A complaint alleging fraudulent misrepresentation is stated when it includes a false statement of fact made with knowledge of its falsity, intended to induce reliance, up…
[2] An action for fraudulent misrepresentation is distinct from an action upon an oral agreement, even if the misrepresentation relates to the terms of a potential agreement.
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Join FLexlaw to unlock all legal intelligence“The essential elements of fraud are: (1) a false statement of fact; (2) known by the defendant to be false at the time it was made; (3) made for the purpose of inducing the plaintiff to act in reliance thereon; (4) action by the plaintiff in reliance on the correctness of the representation; and (5) resulting damage to the plaintiff.”
Establishes the five-part test for fraud that the court applied to determine whether the complaint stated a valid cause of action.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePoliakoff disclosed his driving record to National Emblem Insurance and its agent Bryan, expressing a desire to purchase a non-cancellable automobile …
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The appellant urges that the trial court erred in dismissing his complaint for damages upon a claim of fraudulent misrepresentation. The appellee urges that the complaint was properly dismissed because it showed upon its face that the action was barred by that portion of F.S. § 725.01, F.S.A., which provides:
“No action shall be brought * * * upon any agreement that is not to be • performed within the space of one year from the making thereof, unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by him thereunto lawfully authorized.”
Thus it appears that we are faced with conflicting theories of the case. Appellant construes his action as one in tort for fraudulent misrepresentation. Appel-lees see the action as one upon an oral agreement. The complaint alleges: (1) The appellee, National Emblem, was doing business in Florida as an automobile insurance company; the appellee, Bryan, was the agent and employee of National Emblem. (2) The appellant made a disclosure to the appellees of his driving record and his wish to buy a “non-cancellable” insurance policy. Appellees represented that they would sell him a “non-cancellable” policy. Appellees’ representation was knowingly made and false. (3) Appellant acted upon the false representation by purchasing a policy which was cancelled without stated reason within two months of the date of purchase.
The essential elements of fraud are: (1) a false statement of fact; (2) known by the defendant to be false at the time it was made; (3) made for the purpose of inducing the plaintiff to act in reliance thereon; (4) action by the plaintiff in reliance on the correctness of the representation; and (5) resulting damage to the plaintiff. Finney v. Frost, Fla.App.1969, 228 So.2d 617; Abbate v. Nolan, Fla.App.1969, 228 So.2d 433; Tonkovich v. South Florida Citrus Industries, Inc., Fla.App.1966, 185 So.2d 710 (cause remand*479ed Fla.1967, 196 So.2d 438 and Fla.App.1967, 202 So.2d 579). Using these elements as a guide, we hold that the complaint stated a cause of action.
We point out that we are not here concerned with the proof of appellant’s complaint. Therefore, appellee’s reliance upon Tanenbaum v. Biscayne Osteopathic Hospital, Inc.1 and Rowland v. Ewell2 is not well placed because those cases deal with the proof and enforcement of oral contracts.
Reversed and remanded with directions to deny defendants’ motion to dismiss.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Tanenbaum v. Biscayne Osteopathic Hosp., Inc., 190 So. 2d 777 (Fla. 1966)
- Rowland v. Ewell, 174 So. 2d 78 (Fla. 2d DCA 1965)
- Tonkovich v. S. Fla. Citrus Indus., Inc., 185 So. 2d 710 (Fla. 2d DCA 1966)
- Tonkovich v. S. Fla. Citrus Indus., Inc., 202 So. 2d 579 (Fla. 2d DCA 1967)
- S. Fla. Citrus Indus., Inc. v. Tonkovich, 196 So. 2d 438 (Fla. 1967)
- Finney v. Frost, 228 So. 2d 617 (Fla. 4th DCA 1969)
- Abbate v. Nolan, 228 So. 2d 433 (Fla. 4th DCA 1969)