GEORGE D. WEGENER AND WANDA W. WEGENER, APPELLANTS,
v.
INTERNATIONAL BANKERS INSURANCE COMPANY, APPELLEE
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In this mortgage guaranty insurance dispute, the appellate court reversed a directed verdict for the insurer and held that the jury could properly find the insurer's policy cancellation was unjustified. The court further held that an improper repudiation of coverage waives the insurer's right to enforce policy conditions such as notice requirements.
The court held that the jury could properly have found the insurer's purported cancellation was unjustified under the policy terms. The court further held that as a matter of law, an improper repudiation of coverage waives the insurer's right to insist upon compliance with conditions to recovery, including notice and preservation of subrogation rights.
[1] A jury may properly find that an insurer's purported cancellation of a policy was unjustified under its terms.
[2] An insurer's improper repudiation of coverage waives its right to insist upon the insureds' compliance with conditions precedent to recovery.
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Join FLexlaw to unlock all legal intelligence“the jury could properly have found that the insurer's purported cancellation of the policy was unjustified under its terms”
Establishes the central holding that the jury's verdict finding unjustified cancellation was legally permissible and should not have been overturned by directed verdict.
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Join FLexlaw to unlock all legal intelligenceThe Wegeners held a mortgage guaranty insurance policy with International Bankers Insurance Company. After a jury verdict in favor of the insureds, th…
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PER CURIAM.
After a jury verdict for the insureds in an action on a policy of mortgage guaranty insurance, the trial court granted the carrier’s reserved motions for directed verdict and entered judgment in its favor. We reverse upon the holdings that (a) the jury could properly have found that the insurer’s purported cancellation of the policy was unjustified under its terms, see St. Paul Fire & Marine Insurance Co. v. Mayor’s Jewelers of Ft. Lauderdale, Inc., 465 F. 2d 317 (5th Cir.1972); Cat ’N Fiddle, Inc. v. Century Insurance Co., 213 So. 2d 701 (Fla.1968); cf. Hernandez v. Leiva, 391 So. 2d 292 (Fla. 3d DCA 1980), and that (b) as a matter of law, the effect of the thus-found-to-be-improper repudiation of coverage was to waive any right to insist upon the insureds’ necessarily-thus-futile compliance with the various conditions to recovery-including notice and the preservation of the carrier’s subrogation rights — upon which the insurer now seeks to rely. Indian River State Bank v. Hartford Fire Ins. Co., 46 Fla. 283, 35 So. 228 (1903); Tillis v. Liverpool & London & Globe Ins. Co., 46 Fla. 268, 35 So. 171 (1903); Paz v. Allstate Insurance Co., 478 So. 2d 849 (Fla. 3d DCA 1985); Aristonico Infante v. Preferred Risk Mutual Insurance Co., 364 So. 2d 874 (Fla. 3d DCA 1978); Cunningham v. Austin Ford, Inc., 189 So. 2d 661 (Fla. 3d DCA 1966), cert. dismissed, 198 So. 2d 829 (Fla.1967); American Fidelity Fire Insurance Co. v. Johnson, 177 So. 2d 679 (Fla. 1st DCA 1965), cert. denied, 183 So. 2d 835 (Fla.1966).
Because the trial court has not yet passed upon the carrier’s motion for new trial, the cause is remanded for consideration of that motion, see Prime Motor Inns, Inc. v. Wattman, 480 So. 2d 88, 90 (Fla.1985), in accordance with the principles stated in this opinion, and for further proceedings not inconsistent herewith.
Reversed and remanded with directions.
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Pasteur Health Plan, Inc. v. Salazar, 658 So. 2d 543 (Fla. 3d DCA 1995)…le exclusion did not apply to the ATC accident, it granted Pasteur leave to amend its answer to plead other coverage defenses. Pasteur waived those defenses by failing to raise them in a timely fashion. See Wegener v. International Bankers Ins. Co., 494 So. 2d 259 (Fla. 3d DCA 1986) (improper repudiation of coverage results in waiver of right to insist on insured’s compliance with conditions precedent to coverage), rev. denied, 504 [*546] So. 2d 767 (Fla.1987). In sum, we affirm the order of summary judgment…
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Cooke v. Ins. Co. OF N. Am., 652 So. 2d 1154 (Fla. 2d DCA 1995)…ts defense, then the denial of coverage on the ground of cancellation will have been improper, and INA will have little, if any, right to rely upon the conditions precedent in the policy that it repudiated. Wegener v. International Bankers Ins. Co., 494 So. 2d 259 (Fla. 3d DCA 1986), review denied, 504 So. 2d 767 (Fla.1987). Reversed and remanded. PARKER, A.C.J., and LAZZARA, J., concur.…
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Hershel Bryant and Betty Bryant v. Geovera Specialty Ins. Co., 271 So. 3d 1013 (Fla. 4th DCA 2019)…at would accomplish nothing.” Id. Thus, the effect of an insurer’s improper repudiation of coverage is “to waive any right to insist upon the insureds’ necessarily-thus-futile compliance” with policy conditions. Wegener v. Int’l Bankers Ins. Co., 494 So. 2d 259, 259 (Fla. 3d DCA 1986). In this case, GeoVera’s denial of liability above the sublimits was “based upon grounds other than failure to furnish a notice or proof of loss,” which is tantamount to a waiver of a formal proof of loss. Keel, 99 So. 2d a…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- CAT 'N Fiddle, Inc. v. The Century Ins. Co., 213 So. 2d 701 (Fla. 1968)
- Prime Motor Inns, Inc. v. Waltman, 480 So. 2d 88 (Fla. 1985)
- Tillis v. The Liverpool & London & Globe Ins. Co., 46 Fla. 268 (Fla. 1903)
- Hernandez v. Leiva, 391 So. 2d 292 (Fla. 3d DCA 1980)
- Am. Fid. Fire Ins. Co. v. Johnson, 177 So. 2d 679 (Fla. 1st DCA 1965)
- The Indian River State Bank v. The Hartford Fire Ins. Co., 46 Fla. 283 (Fla. 1903)
- Cunningham v. Austin Ford, Inc., 189 So. 2d 661 (Fla. 3d DCA 1966)
- Aristonico Infante v. Preferred Risk Mut. Ins. Co., 364 So. 2d 874 (Fla. 3d DCA 1978)
- Gorden v. State, 183 So. 2d 835 (Fla. 1966)
- Berlin v. Berlin, 183 So. 2d 835 (Fla. 1966)