PHRAZER CO., INC., APPELLANT,
v.
LAWYERS TITLE INSURANCE CORPORATION, APPELLEE
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The court affirmed the summary judgment on the breach of the title insurance policy but remanded to allow the plaintiff to amend its complaint to assert a claim for breach of duty as a closing agent.
Phrazer sued its title insurer for breach of a title policy. The trial court granted summary judgment for the insurer. Phrazer also alleged the insure…
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ORFINGER, Judge.
Phrazer appeals the entry of a summary final judgment in its breach of contract action based on a title policy issued to it by appellee. Because the record supports the trial court’s determination that, as a matter of law, there was no breach of the title insurance policy as written, we affirm the judgment.
However, the record reveals that the appellants may have a cause of action against appellee as closing agent in the real estate transaction which resulted in the issuance of the title insurance policy.
On this appeal, Phrazer contends that appellee breached its duty as closing agent by permitting the transaction to close without assuring that Phrazer would have direct access to State Road 528 as the contract for sale and purchase specifically required, and then issuing its title insurance policy which does not insure that direct access is available. We do not find that this issue was raised by the pleadings or even considered by the trial court. It appears that appellant should have the opportunity to present this issue to the trial court.
We therefore affirm the summary final judgment on the issues framed in this breach of contract action, but we remand the cause to the trial court with directions that appellant be permitted, within a reasonable time, to amend its complaint to assert such claim against appellee for the alleged breach of its duty as closing agent as appellant may be advised. See, Don Suntan Corporation v. Tanning Research Laboratories, Inc., 505 So. 2d 35 (Fla. 5th DCA 1987); Coudry v. City of Titusville, 438 So. 2d 197 (Fla. 5th DCA 1983); Florida Air Conditioners, Inc. v. Colonial Supply Co., 390 So. 2d 174 (Fla. 5th DCA 1980).
AFFIRMED and REMANDED.
UPCHURCH, C.J., and COWART, J., concur.
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Arky v. Bowmar Instrument Corp., 527 So. 2d 211 (Fla. 3d DCA 1987)…So. 2d 910 (Fla. 3d DCA 1977); Tucker v. Daugherty, 122 So. 2d 230 (Fla. 2d DCA 1960); Edwards v. Young, 107 So. 2d 244 (Fla. 2d DCA 1958). Some post-Dober cases have continued this practice. See, e.g., Phrazer Co. v. Lawyers Title Insurance Corp., 508 So. 2d 731 (Fla. 5th DCA 1987); Coudry v. City of Titusville, 438 So. 2d 197 (Fla. 5th DCA 1983); Grady v. Grady, 395 So. 2d 643 (Fla. 4th DCA 1981). See also Don Suntan Corp. v. Tanning Research Laboratories, Inc., 505 So. 2d 35 (Fla. 5th DCA 1987). Cf. Somat…
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Sommers v. Smith & Berman, P.A., 637 So. 2d 60 (Fla. 4th DCA 1994)…e no factual allegations that Chicago Title was acting as a closing agent pursuant to that statute, nor any factual allegations that Chicago Title was otherwise acting as a closing agent. In Phrazer Co., Inc. v. Lawyers Title Insurance Corporation, 508 So. 2d 731 (Fla. 5th DCA 1987), the buyer sued the title insurance company, contending it was responsible for permitting the transaction to close without making sure that the buyer had direct access to a road. The trial court entered a summary judgment against…
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- Coudry v. City OF Titusville, 438 So. 2d 197 (Fla. 5th DCA 1983)
- Fla. AIR Conditioners, Inc. v. Colonial Supply Co., 390 So. 2d 174 (Fla. 5th DCA 1980)
- DON Suntan Corp. v. Tanning Research Labs., Inc., 505 So. 2d 35 (Fla. 5th DCA 1987)