GISELA INVESTMENTS, N.V. AND CONTINENTAL MOVING AND STORAGE, INC., BY AND THROUGH THEIR ASSIGNEES, MEEKINS-BAMMAN PRESTRESS, INC., PURITAN INSURANCE COMPANY AND PINETOP INSURANCE COMPANY, APPELLANTS,
v.
LIBERTY MUTUAL INSURANCE COMPANY, APPELLEE
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A provision prohibiting assignment of an insurance policy does not prevent assignment of a claim for money due after a loss has occurred.
The trial court granted summary judgment for the insurer, holding that a policy provision prohibited assignment of the claim after a loss. The appella…
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FERGUSON, Judge.
A provision in a policy of insurance which prohibits assignment thereof except with consent of the insurer does not apply to prevent assignment of the claim or interest in the insurance money then due, after loss. West Florida Grocery Co. v. Teutonia Fire Insurance Co., 74 Fla. 220, 77 So. 209 (Fla.1917). The trial court’s holding to the contrary was incorrect.
We will not affirm the summary judgment entered herein on an alternative factual ground which was not specifically asserted by motion or argued to the trial court, and which was not supported by any evidence at the time of the hearing on the motion for summary judgment.1 This case is .distinguishable from other cases where summary judgment was affirmed for a reason other than that relied upon by the trial court. See, e.g., Szabo v. Ashland Oil Co., 448 So. 2d 549 (Fla. 3d DCA 1984) (alternative ground set forth specifically in motion, argued to trial court and supported by evidence in the record at the time of hearing); Hester v. Gatlin, 332 So. 2d 660 (Fla. 2d DCA 1976) (where trial court’s erroneous rationale for entering summary judgment is based on a question of pure law rather than fact, appellate court can uphold summary judgment on an alternative legal ground).
REVERSED and remanded for further proceedings.
. An affidavit pertaining to matters of fact, which would have supported the appellee’s alternative ground for summary judgment was filed nine days after hearing on the motion and without leave of court or notice to appellants. Appellants contend that they had deposed a witness whose testimony would have contradicted the affidavit of appellee's witness. A deposition of that testimony was not filed because it was unrelated to the legal question presented in the motion for summary judgment.
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ONE Call Prop. Servs. Inc. v. Sec. First Ins. Co., 165 So. 3d 749 (Fla. 4th DCA 2015)…Constr., Inc. v. Nat'l Union Fire Ins. Co., 651 So. 2d 141, 142 (Fla. 3d DCA 1995) (“[A] provision against assignment of an insurance policy does not bar an insured’s assignment of an after-loss claim.”); Gisela Invs., N.V. v. Liberty Mut. Ins. Co., 452 So. 2d 1056, 1057 (Fla. 3d DCA 1984) (“A provision in a policy of insurance which prohibits assignment thereof except with consent of the insurer does not apply to prevent assignment of the claim or interest in the insurance money then due, after loss.”); see a…
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In re the Est. OF Carlos Rumaldo Herrera v. Berlo Indus. Inc., 840 So. 2d 272 (Fla. 3d DCA 2003)…to make its ruling. Lastly, Herrera seeks to raise issues which were not raised in the trial court. However, issues not presented in the trial court cannot be raised for the first time on appeal. See Gisela Invs., N.V. v. Liberty Mut. Insur. Co., 452 So. 2d 1056 (Fla. 3d DCA 1984). Thus, Herrera is precluded from raising new arguments on appeal. Affirmed.…
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Landis v. Allstate Ins. Co., 516 So. 2d 305 (Fla. 3d DCA 1987)…n Corp. v. Szabo, 453 So. 2d 43 (Fla.1984); Crown Life Ins. Co. v. Garcia, 424 So. 2d 893 (Fla. 3d DCA 1982); Hester v. Gatlin, 332 So. 2d 660 (Fla. 2d DCA 1976). The case cited for the contrary position, Gisela Invs., N.V. v. Liberty Mut. Ins. Co., 452 So. 2d 1056, 1057 (Fla. 3d DCA 1984), does not apply because the alternative ground urged there “was not specifically asserted by motion or argued to the trial court, and . . . was not supported by any evidence at the time of the hearing on the motion for summa…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- W. Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220 (Fla. 1917)
- Hester v. Gatlin, 332 So. 2d 660 (Fla. 2d DCA 1976)
- Ferguson v. State, 448 So. 2d 549 (Fla. 3d DCA 1984)
- Sandor Szabo and Joan Szabo v. Ashland OIL Co., 448 So. 2d 549 (Fla. 3d DCA 1984)