OLD REPUBLIC INSURANCE COMPANY, APPELLANT,
v.
JAMES B. WILSON, ET AL., APPELLEES
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Old Republic Insurance Company appealed the denial of its motion to file a cross-claim for reformation of an insurance policy and the resulting summary judgment against it for coverage. The Florida appellate court reversed, holding that Old Republic should have been permitted to amend its pleading to assert a reformation claim that could have defeated the summary judgment on coverage.
The court held that Old Republic's motion for leave to amend should have been granted because leave to amend should be freely given when justice so requires, particularly when sought at or before a hearing on a motion for summary judgment. The reformation claim, if successful, would have defeated Wilson's summary judgment motion on coverage.
[1] Leave to amend should be freely given when justice so requires, particularly when sought at or before a hearing on a motion for summary judgment.
[2] Denial of a motion for leave to file a cross-claim for reformation of an insurance policy, if meritorious, constitutes error when such reformation would defeat a pending…
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Join FLexlaw to unlock all legal intelligence“Leave to amend should be freely given when justice so requires, Fla.R.Civ.P. 1.190(a), the more so when a party seeks such a privilege at or before a hearing on a motion for summary judgment.”
Establishes the liberal standard for granting leave to amend pleadings, particularly in the context of summary judgment motions.
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Join FLexlaw to unlock all legal intelligenceWilson was injured by Timmerman's negligent operation of an automobile and sued Timmerman and his insurers, Colonial Penn and Old Republic. Old Republ…
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PER CURIAM.
Wilson was injured by the negligence of Timmerman in operating an automobile. He filed an action against Timmerman, and Colonial Penn and Old Republic, who were the liability insurers of the Timmermans. Old Republic answered denying coverage. Wilson subsequently moved for summary judgment on the coverage issue. The day before the hearing on that motion Old Republic filed a motion to continue the hearing and a motion for leave to file a cross-claim for reformation of the insurance policy on the ground of mistake. Also on that date, the insurer filed an affidavit in opposition to the plaintiff's summary judgment motion in which it was stated that the automobile insurance policy contained an error which related to the covered automobiles. The trial court denied the motions and entered summary judgment for Wilson determining that Old Republic had in effect an insurance policy providing coverage to the Timmermans.
Colonial Penn and Timmerman then sought leave to file cross-claims against Old Republic alleging that Old Republic was obligated to contribute seventy-five per cent of any judgment in Wilson’s favor. The circuit court granted leave to file these cross-claims. Old Republic answered and filed a cross-claim in which it sought reformation of the policy and restitution under the theory of unjust enrichment. Ultimately, the circuit court granted summary judgment in favor of Colonial Penn and Tim-merman on their cross-claims. Timmer-man’s negligence and the amount of damages were agreed to and thus final judgment was entered awarding Wilson $137,-500 of which Old Republic was obligated to pay $103,125. We reverse.
Leave to amend should be freely given when justice so requires, Fla.R.Civ.P. 1.190(a), the more so when a party seeks such a privilege at or before a hearing on a motion for summary judgment. Haag v. Phillips, 333 So. 2d 507 (Fla. 2d DCA 1976). Old Republic’s cross-claim for reformation of the insurance policy, if meritorious would have defeated Wilson’s motion for summary judgment. Consequently, the denial of Old Republic’s motion for leave to file a cross-claim was error. Since the order denying the motion for leave to assert a cross-claim must be reversed, all subsequent rulings are vacated and the ease is remanded for further proceedings.
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Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. 5th DCA 2005)…uld be liberally granted, especially when made prior to or at a hearing on a motion for summary judgment. See Ranger Constr. Indus., Inc. v. Martin Cos. of Daytona, Inc., 881 So. 2d 677, 681 n. 2 (Fla. 5th DCA 2004); Old Republic Ins. Co. v. Wilson, 449 So. 2d 421, 422 (Fla. 3d DCA 1984) ("Leave to amend should be freely given when justice so requires, Fla.R.Civ.P. 1.190(a), the more so when a party seeks such a privilege at or before a hearing on a motion for summary judgment.”) (citation omitted). . In Ste…
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Montero v. Compugraphic Corp., 531 So. 2d 1034 (Fla. 3d DCA 1988)…re is no showing that the privilege has been abused, and the more so where leave is sought at or before a hearing on a motion for summary judgment. Bowen v. Aetna Life and Cas. Co., 512 So. 2d 248 (Fla. 3d DCA 1987); Old Republic Ins. Co. v. Wilson, 449 So. 2d 421 (Fla. 3d DCA 1984); Affordable Homes, Inc. v. Devil’s Run, Ltd., 408 So. 2d 679 (Fla. 1st DCA 1982). The summary judgment and the order denying leave to amend the complaint are reversed and the cause is remanded for further proceedings. . Montero…
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Joseph Bowen and his spouse v. AETNA Life & Cas. Co., 512 So. 2d 248 (Fla. 3d DCA 1987)…e of the amendment privilege or the complaint shows on its face that there is a deficiency which cannot be cured by amendment. Affordable Homes, Inc. v. Devil’s Run, Ltd., 408 So. 2d 679 (Fla. 1st DCA 1982). See also Old Republic Ins. Co. v. Wilson, 449 So. 2d 421 (Fla. 3d DCA 1984). Denial of the motion for leave to amend followed by a prejudicial dismissal for failure to state a cause of action was error. It appears that the complaint can be amended to state a cause of action. Count IV is a derivative clai…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Haag v. Phillips, 333 So. 2d 507 (Fla. 2d DCA 1976)