BUNNELL MEDICAL CLINIC, P. A., APPELLANT,
v.
EDUARDO BARRERA, M.D., APPELLEE

Fla. 5th DCA | 1982-08-25
No. 81-1172
DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.
419 So. 2d 681 Florida District Court of Appeal, Fifth District (1982) Positive Treatment
Cited by 17 cases

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Synopsis

This case involves a dispute over an employment contract where a medical clinic agreed to provide malpractice insurance for a physician. The court reversed a partial summary judgment, finding that a latent ambiguity in the contract regarding the application process for insurance created genuine issues of material fact, precluding summary judgment.


Holding

Yes, a latent ambiguity existed in the contract. The contract was clear on its face but extrinsic evidence revealed a need for interpretation regarding the application process and determination of insurability, creating genuine issues of material fact that prevented summary judgment.


Headnotes

[1] A latent ambiguity in a contract arises when clear language requires interpretation due to extrinsic facts or evidence, creating a need to choose between two possible mea…

[2] Summary judgment is precluded when a latent ambiguity exists in a contract, requiring parol evidence to determine the parties' intent and creating genuine issues of mater…

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Key Quotes

“It is clear from the agreement here that appellant agreed to provide insurance for appellee, but the agreement is silent on the question of how and by whom that insurance is to be applied for or by whom and by what means Barrera’s insurability would be determined. This appears to create a latent ambiguity in the agreement.”

Establishes the court's finding of latent ambiguity in the contract.

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Facts & Procedural History

A medical clinic (appellant) and a physician (appellee) had an employment contract requiring the clinic to "furnish and carry adequate malpractice ins…

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Opinion of the Court
ORFINGER, Chief Judge.

ORFINGER, Chief Judge.

Appellant medical clinic and appellee physician entered into an employment contract in 1976 wherein appellee agreed to furnish medical services in appellant’s emergency room. When an action for malpractice was filed against appellee for an incident which occurred in 1977, he requested that appellant provide him with a defense and indemnify him against any judgment for damages because, so appellee alleged, appellant had breached a provision of the employment contract which required appellant to provide malpractice insurance for appellee. When appellant refused, appellee sued to recover damages because of the alleged breach. The trial court determined the contract to be unambiguous and granted appellee’s motion for summary judgment as to liability. Appellant appeals from this partial summary judgment.1 We reverse.

The contract provision in question says: “Company shall during the term of this contract, perform the following obligations and undertakings:

(a) Furnish and carry adequate malpractice insurance to cover the activities of Barrera, provided he is insurable by company’s insurer.”

Appellant’s answer to the complaint admitted that it was obligated to pay for appellee’s malpractice insurance, but alleged affirmatively that, because of the personal nature of malpractice insurance, appellee was required to personally apply for and obtain such insurance, which he failed to do; that appellant could not furnish the insurance unless appellee applied for it, and that this was the customary procedure followed in the appellant’s business.

Supporting appellee’s motion for partial summary judgment was his affidavit stating that his qualifications for malpractice insurance coverage in 1976 and 1977 had not changed from those in 1979 and that his 1979 application for malpractice insurance had been approved. Sworn answers to written interrogatories by a representative of the insurance carrier stated that the company never received an application for insurance from appellee for 1976 or 1977, but assuming that his qualifications were the same in those years as they were in 1979, appellee would have been insurable by that company. Implicit in these answers, however, is the apparent requirement that an application for insurance be filed, and admittedly no application was filed for the period in question here.

In opposition to the motion for summary judgment, appellant produced testimony that in 1976 all emergency room physicians, including appellee, had been reminded of the importance of applying for malpractice insurance, that industry practice required each physician to make the application and secure the insurance, and that appellant would pay the premium when insurance was obtained; that in 1976, when appellee became a member of the local medical society, he had secured the signature of the secretary of the medical society on an insurance application, and was aware of the practice.

The court entered the partial summary judgment for appellee, finding that there was no ambiguity in the contract, that there was no genuine issue as to any material fact on the issue of liability, and that appellee was entitled to partial summary judgment as a matter of law on the issue of liability. After rehearing was denied, this appeal followed.

Interpretation of a contract is generally a question of law for the court, rather than a question of fact. Peacock Construction Co., Inc., v. Modern Air Conditioning, Inc., 353 So. 2d 840 (Fla.1977). However, when the wording of an agreement is ambiguous and the parties present different interpretations, the issue of proper interpretation can become one of fact, thus precluding summary judgment. Griffin Builders Supply, Inc. v. Jones, 384 So. 2d 265 (Fla. 2d DCA 1980); Westchester Fire Insurance Co. v. In-sinkerator, 252 So. 2d 856 (Fla. 4th DCA 1971).

It is clear from the agreement here that appellant agreed to provide insurance for appellee, but the agreement is silent on the question of how and by whom that insurance is to be applied for or by whom and by what means Barrera’s insurability would be determined. This appears to create a latent ambiguity in the agreement. A latent ambiguity has been defined as one where the language in a contract is clear and intelligible and suggests a single meaning, but some extrinsic fact or extraneous evidence creates a need for interpretation or a choice between two possible meanings. Hunt v. First National Bank of Tampa, 381 So. 2d 1194 (Fla. 2d DCA 1980); Drisdom v. Guarantee Trust Life Insurance Company, 371 So. 2d 690 (Fla. 3d DCA 1979).

If, as asserted, insurance could only be obtained by appellee’s personal application, then it would be an unfair and inequitable interpretation to hold appellant liable for failure to obtain the insurance when appellee’s own failure to act prevented the happening of the required event. A contract should be interpreted in a manner that produces a fair and equitable result. Hunt, 381 So. 2d at 1197.

Because of the latent ambiguities in the agreement, parol evidence was admissible to show the intent of the parties, Landis v. Mears, 329 So. 2d 323 (Fla. 2d DCA 1976), and the existence of issues of fact and conflicting inferences to be drawn from the evidence precluded summary judgment. Burris v. Jacobson, 417 So. 2d 787 (Fla. 5th DCA 1982); Kirsch v. Mannen, 393 So. 2d 63 (Fla. 3d DCA 1981). The summary judgment determining liability in favor of appellee is reversed, and the cause is remanded for further proceedings.

REVERSED and REMANDED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur. . Fla.R.App.P. 9.I30(a)(3)(C)(iv).


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Cited By

  • …us). The above decisions, which hold the exclusions to be ambiguous when applied to the facts did not label that type of ambiguity as a latent ambiguity. Nevertheless, that is what it would be, as defined in Bunnell Medical Clinic, P.A. v. Barrera, 419 So. 2d 681, 683 (Fla. 5th DCA 1982): A latent ambiguity has been defined as one where the language in a contract is clear and intelligible and suggests a single meaning, but some extrinsic fact or extraneous evidence creates a need for interpretation or a cho…
  • Crown Mgmt. Corp. v. Goodman, 452 So. 2d 49 (Fla. 2d DCA 1984)
    …, is said to exist where a contract fails to specify the rights or duties of the parties in certain situations and extrinsic evidence is necessary for interpretation or a choice between two possible meanings. Bunnell Medical Clinic, P.A. v. Barrera, 419 So. 2d 681 (Fla. 5th DCA 1982); Hunt. In such instance, this evidence is required because the instrument itself does not provide sufficient insight into the intent of the parties. Morton v. Morton, 307 So. 2d 835 (Fla. 2d DCA), cert.denied, 324 So. 2d 90 (Fla.…
  • Nationstar Mortg. Co. v. Levine, 216 So. 3d 711 (Fla. 4th DCA 2017)
    …6 (Fla. 4th DCA 1973), if the wording is ambiguous and the parties present different reasonable interpretations then “the issue of proper interpretation can become one of fact, thus precluding summary judgment.” Bunnell Med. Clinic, P.A. v. Barrera, 419 So. 2d 681, 683 (Fla. 5th DCA 1982). [*715] An agreement is ambiguous if as a whole or by its terms and conditions it can reasonably be interpreted in more than one way. See Fla. Power & Light Co. v. Hayes, 122 So. 3d 408, 411 (Fla. 4th DCA 2013) (quoting Mill…

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