DOMINICK ARGIRO AND MICHELLE ARGIRO, APPELLANTS,
v.
PROGRESSIVE AMERICAN INSURANCE COMPANY, APPELLEE
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An insured settled a personal injury claim for $10,000 against a tortfeasor despite a nonsettlement clause in her uninsured/underinsured motorist policy and the insurer's explicit request not to waive subrogation rights. When the insurer refused to pay benefits, the insured sued; the court upheld the insurer's denial, holding that the insured failed to rebut the presumption of prejudice arising from violating the policy's nonsettlement provision.
An insured who violates a nonsettlement clause and waives an insurer's subrogation rights bears the burden of proving the insurer was not prejudiced. Here, Argiro failed to meet this burden; her mere assertion that the tortfeasor was judgment-proof, unsupported by sufficient evidence, was insufficient to overcome the presumption of prejudice.
[1] An insured who settles with a tortfeasor in violation of a non-settlement clause in an insurance policy is presumed to have prejudiced the insurer, and the burden shifts…
[2] A mere denial of prejudice is insufficient to overcome the presumption of prejudice arising from an insured's settlement with a tortfeasor in violation of a policy provis…
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Join FLexlaw to unlock all legal intelligence“where an insured settles with a third party tortfeasor in violation of a non-settlement provision in a contract for insurance, the insurer is presumed to have been prejudiced, and the burden falls upon the insured to prove otherwise”
Establishes the legal standard that an insured bears the burden of proving no prejudice when violating a nonsettlement clause
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Join FLexlaw to unlock all legal intelligenceArgiro settled a claim valued at $30,000-$40,000 for only $10,000 and released the tortfeasor from liability. Her insurance policy with Progressive co…
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PER CURIAM.
Argiro entered into a settlement agreement with a tortfeasor, whereby Argiro received $10,000 for a claim valued at $30,-000 to $40,000. In return, Argiro released the tortfeasor from any further liability. This was contrary to a nonsettlement clause of an uninsured/underinsured motorist insurance policy, issued to Argiro by Progressive Insurance Company (Progressive), as well as a specific request by Progressive asking Argiro not to waive any of its subrogation rights. When Progressive refused to pay Argiro for her damages not covered by the settlement agreement, Argi-ro sued Progressive for benefits pursuant to her insurance policy. The trial court rendered a verdict for Progressive, and Ar-giro appealed.
Argiro contends that Progressive was not prejudiced by the settlement, which waived Progressive’s right to pursue a money judgment against the tortfeasor, since Progressive would have been unable to collect a judgment against the tortfeasor. However, the general rule in Florida is that where an insured settles with a third party tortfeasor in violation of a non-settlement provision in a contract for insurance, the insurer is presumed to have been prejudiced, and the burden falls upon the insured to prove otherwise. General Accident Ins. Co. of Am. v. Taplis, 493 So. 2d 32 (Fla. 5th DCA 1986); American Fire & Casualty Co. v. Sinz, 487 So. 2d 340 (Fla. 4th DCA 1986); Gould v. Prudential Property & Casualty Ins. Co., 443 So. 2d 127 (Fla. 5th DCA 1983), rev. denied, 451 So. 2d 848 (Fla.1984); Lopez v. Fidelity & Casualty Co., 412 So. 2d 394 (Fla. 3d DCA 1982); Kaplan v. Phoenix of Hartford Ins. Co., 215 So. 2d 893 (Fla. 3d DCA 1968), cert. denied, 220 So. 2d 365 (Fla.1969). “A mere denial of prejudice is insufficient.” Taplis, 493 So. 2d at 33.
Based upon the evidence presented by Argiro there is no reason to believe her contention that the tortfeasor was, and would remain, “judgment-proof.” In fact, the record shows that the tortfeasor was a college student with good grades, holding a part-time job. Furthermore, he had both a checking and a savings account in addition to savings bonds. The trial judge was not obliged to accept as an established fact the expert opinion offered by Argiro’s witness. Behm v. Division of Administration, 336 So. 2d 579 (Fla.1976). Argiro failed to present other evidence sufficient to overcome the presumption of prejudice the waiver of subrogation rights caused to Progressive. Consequently, the trial court correctly returned a verdict for Progressive. Accordingly, the judgment under review is
Affirmed.
NESBITT and DANIEL S. PEARSON, JJ., concur.
SCHWARTZ, Chief Judge
(specially concurring).
While I am compelled by the weight of authority to concur with the result, I believe that it is wholly unrealistic to ascribe actual commercial value to the assumed ability to secure and collect a judgment against an uninsured individual defendant, even though he may not be theoretically judgment-proof. For the very reasons that, as is well known, it is perfectly appropriate — when there is no UM policy — for a responsible plaintiffs attorney to settle a case for the policy limits, or to decline as not financially worthwhile to proceed at all against an uninsured defendant, I would hold if I could that a UM carrier loses nothing when the defendant has been released from personal liability and that it should not be entitled to the gratuitous windfall of the forfeiture of the coverage for which it has been paid. In the present case, as the insured’s “credit expert” indicated, the likelihood that Progressive would find it economically feasible even to pursue the tortfeasor, who now resides in another state, much less that it might collect from him on its subrogated claim, is so remote that its loss of that “right” should have no effect upon its obligation to its insured.
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Watherwax v. Allstate Ins. Co., 538 So. 2d 108 (Fla. 2d DCA 1989)…d, 220 So. 2d 365 (1969). The general rule in Florida is that where an insured settles with a third party tortfeasor in violation of a nonsettlement provision, the insurer is presumed to have been prejudiced. Argiro v. Progressive American Ins. Co., 510 So. 2d 635 (Fla. 3d DCA 1987); American Fire & Casualty Co. v. Sinz, 487 So. 2d 340 (Fla. 4th DCA 1986). However, this is a rebuttable presumption, and therefore, if the insured effectively carries the burden of showing that the breach did not in fact prejudic…
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Yablon v. N. River Ins. Co., 654 So. 2d 1033 (Fla. 4th DCA 1995)…. 2d 1182 (Fla.1993). When an insured settles with a third party tortfeasor in violation of a non-consensual settlement provision in a contract for insurance the UM insurer is presumed to be prejudiced. Argiro v. Progressive American Insurance Co., 510 So. 2d 635 (Fla. 3rd DCA 1987). However, this is a rebuttable presumption and does not prohibit the insured from showing there was a lack of prejudice to the uninsured motorist carrier. Government Emp. Ins. Co. v. Sutton, 400 So. 2d 476 (Fla. 5th DCA 1981). Se…
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Auto-Owners Ins. Co. v. Cincinnati Ins. Co., 576 So. 2d 395 (Fla. 1st DCA 1991)…settlement and release with the tort-feasor without giving notice to and obtaining consent from Cincinnati. The resolution of this issue depended on whether the tort-feasor was and will remain judgment proof. Argiro v. Progressive American Ins. Co., 510 So. 2d 635 (Fla. 3rd DCA 1987). Normally, such a determination involves questions of material fact which would preclude summary judgment. Watherwax v. Allstate Ins. Co., 538 So. 2d 108 (Fla. 2nd DCA 1989). Under the unique circumstances of the instant case,…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Behm v. Division OF Administration, 336 So. 2d 579 (Fla. 1976)
- Carlton Lee Fields v. State, 215 So. 2d 893 (Fla. 3d DCA 1968)
- Gen. Accident Ins. Co. of Am. v. Taplis, 493 So. 2d 32 (Fla. 5th DCA 1986)
- Gould v. Prudential Prop. & Cas. Ins. Co., 443 So. 2d 127 (Fla. 5th DCA 1983)
- Am. Fire & Cas. Co. & W. Am. Ins. Co. v. Bradford Sinz, 487 So. 2d 340 (Fla. 4th DCA 1986)
- Coleman v. Henry W. Brown & Sons, Inc., 220 So. 2d 365 (Fla. 1969)
- Phoenix OF Hartford Ins. Co. v. Gale Rubin Kaplan, 220 So. 2d 365 (Fla. 1969)
- Iberia Lopez v. Fid. & Cas. Co. of N.Y., 412 So. 2d 394 (Fla. 3d DCA 1982)