NATIONAL BEN FRANKLIN LIFE INSURANCE CORPORATION, A FOREIGN CORPORATION, APPELLANT,

v.

GAIL COHEN, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ALBERT E. COHEN, DECEASED, APPELLEE

PER CURIAM.

After careful review of the record in this cause, we have concluded that the summary final judgment entered on behalf of the plaintiff/appellee must be reversed. The plaintiff failed to nullify all of the defendant’s affirmative defenses and, consequently, it was error to grant summary judgment. In Bunner v. Florida Coast Bank, 390 So. 2d 126, 127 (Fla. 4th DCA 1980), we recapitulated the general rule that “to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses.” Here, defendant asserted affirmative defenses in which it alleged that the insurance policy was fraudulently secured and that upon discovery of the fraud it properly cancelled the contract and notified the insured. Further, defendant affirmatively alleged that the plaintiff colluded with two of defendant’s agents to obtain insurance through a fraudulent scheme. In our view, plaintiff failed to negate these defenses. Thus, the order granting summary final judgment and a subsequent final judgment which awarded attorney’s fees must be reversed.

Since the cause must be remanded for additional proceedings, we believe that the interests of justice will be best served by allowing the parties to amend their pleadings. Appellant/defendant has argued that the plaintiff’s failure to pay cash for the insurance policy as required by Section 627.4035, Florida Statutes (1979), constitutes an absolute bar to recovery. Although this contention may be implicit in the pleadings as they are presently drawn, it ought to-be asserted expressly as an affirmative defense if the defendant intends to continue to rely upon it. This, in turn, would permit the plaintiff to file an appropriate responsive pleading and, thus, properly frame the issues.

Accordingly, the final summary judgment and the final judgment on attorney’s fees are reversed and the cause is remanded for further proceedings consistent with this opinion.

ANSTEAD and HURLEY, JJ., and WARREN, LAMAR, Associate Judges, concur.

[*554] ON MOTION FOR REHEARING

PER CURIAM.

The motion for rehearing is denied.

HURLEY, J., and WARREN, LAMAR, Associate Judge, concur. ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

I agree with the majority that the petition for rehearing should be denied but add these brief remarks with the hope of resolving the parties’ apparent misunderstanding of our holding and avoiding the same problems on remand.

In defense of the claim on one of its life insurance contracts, the insurance company alleged that the policy was fraudulently secured and that upon the discovery of the fraud it properly cancelled the contract and the insured in essence agreed to the cancellation. There is evidence in the record to support these allegations and the existence of this evidence precludes the disposition of this case by summary judgment. For instance, the company asserts that it specifically advised the agents involved that it would not participate in any bartering arrangements for the payment of premiums and that it was not aware of the circumstances under which this policy was issued. There is also evidence that the insured falsely advised the company that he had paid the full first year premium by check; that he had not actually provided any. consideration to the agent for the payment of the first year premium; and that he had acquiesced in the cancellation of the policy. The appellee disputes the allegations of fraud and points to evidence in the record indicating that the company was aware of and consented to a bartering arrangement by which the premiums were paid and that the entire transaction was legitimate. There is an issue of fact on the fraud defense.

In addition, on appeal, the insurance company has asserted that Section 627.4035, Florida Statutes (1979) bars any recovery under the policy. However, there is no indication in the record that this alleged statutory bar was pleaded below or that the appellee had an opportunity to reply to this defense. We have made no ruling on this issue other than to indicate that upon remand it should be addressed in amended pleadings.