EMPIRE FIRE & MARINE INSURANCE COMPANY, APPELLANT,
v.
BYRON BLACK, APPELLEE
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Empire Fire & Marine Insurance Company appeals a judgment awarding its insured Byron Black damages for both breach of insurance coverage and fraudulent misrepresentation. The court affirmed the summary judgment on the coverage issue but reversed the fraud claim damages and the associated attorney's fees award, finding no cognizable damages resulted from the alleged fraud since Empire was ultimately required to cover the accident.
The court affirmed the summary judgment on the insurance coverage issue but reversed the fraud claim damages because no legally cognizable damages were sustained when Empire ultimately was required to cover the accident. The court reversed the attorney's fees and costs award because fees were improper on the fraud claim and the award failed to comply with required findings and calculations.
[1] A claim for fraudulent misrepresentation requires proof of legally cognizable damage.
[2] An insurer is not liable for fraudulent misrepresentation when it is ultimately required by a court to cover the loss at issue.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Having done so, however, we can see no legal basis for Black's fraudulent misrepresentation claim that Empire, through dishonest dealings, falsely denied that it had sold Black the type of insurance policy which covered the truck accident upon which Black was sued.”
The court rejects the fraud claim on its merits, finding no legal basis for the fraudulent misrepresentation theory.
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Join FLexlaw to unlock all legal intelligenceByron Black was sued in connection with a truck accident and made a claim against his insurer, Empire Fire & Marine Insurance Company. Empire initiall…
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PER CURIAM.
This is an appeal by the defendant Empire Fire and Marine Insurance Company [Empire] from a final judgment based on (1) an adverse partial summary judgment on an insurance coverage issue, and (2) an adverse jury verdict on a fraud claim in an insurance coverage/fraud action brought by its insured Byron Black [Black]. This is also an appeal by Empire from an adverse post-judgment attorney’s fee and cost award entered in favor of Black. We affirm in part and reverse in part based on the following briefly stated legal analysis.
First, we have no difficulty in affirming the final judgment on the insurance coverage issue, as, in our view, the trial court properly entered a partial summary judgment in favor of Black on this aspect of the case. Having done so, however, we can see no legal basis for Black’s fraudulent misrepresentation claim that Empire, through dishonest dealings, falsely denied that it had sold Black the type of insurance policy which covered the truck accident upon which Black was sued. In fact, Empire did not succeed in such chicanery as it was required by the trial court to cover the sued upon accident; this being so, there can be no claim for fraudulent misrepresentation because no legally cognizable damage was sustained by Black. Casey v. Welch, 50 So. 2d 124 (Fla.1951); Cape Cod Trust Co. v. Wixon, 143 So. 2d 339 (Fla. 2d DCA 1962); cf. George Hunt, Inc. v. Wash-Bowl, Inc., 348 So. 2d 910, 912-13 (Fla. 2d DCA 1977).
Second, we must also reverse the attorney’s fee and cost order under review as clearly Black was not entitled to attor ney’s fees on the fraud claim. Moreover, the order appealed from fails to make the appropriate findings and calculations required by Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1151-52 (Fla.1985); finally, Black concedes that $1,904.56 was improperly included in the cost order. The final judgment under review is reversed, and the cause is remanded to the trial court with directions to strike from the judgment the amount of damages awarded by the jury on the fraud claim; the partial summary judgment on the insurance coverage issue, however, is approved. The attorney’s fees and costs judgment under review is reversed, and the cause is remanded to the trial court with directions (1) to award attorney’s fees for Black solely on the insurance coverage issue, not the fraud claim, in accord with the findings and calculations required by Florida Patient’s Compensation Fund v. Rowe, and (2) to enter a cost award for Black solely on the insurance coverage issue, not the fraud claim, and to refrain from awarding any of the $1,904.56 in costs conceded by Black to be error on this appeal.
Affirmed in part; reversed in part.
Cases With Similar Vibessemantic neighbors from the corpus
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Lyle v. Nat'l Sav. Life Ins. Co. & Robert W. Goodwin, 558 So. 2d 1047 (Fla. 1st DCA 1990)…acts similar to those presented in this case, the third district found no legal basis for an insured’s fraudulent misrepresentation claim, because the insurer was required to cover the sued upon accident. Empire Fire & Marine Insurance Co. v. Black, 546 So. 2d 732 (Fla. 3d DCA 1989). The court held that in such circumstances, “there can be no claim for fraudulent misrepresentation because no legally cognizable damage was sustained by Black.” Id. See also Casey v. Welch, 50 So. 2d 124 (Fla.1951); National Airc…
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Hikmet Harmanoglu v. Rogel, 587 So. 2d 634 (Fla. 3d DCA 1991)…denied. See National Aircraft Servs. v. Aeroserv Int’l, 544 So. 2d 1063, 1065 (Fla. 3d DCA 1989) (“there can be no claim for fraudulent misrepresentation because, no legally cognizable damage was sustained”); Empire Fire & Marine Ins. Co. v. Black, 546 So. 2d 732, (Fla. 3d DCA 1989) (same). Finding no merit in other issues raised, we affirm the order granting final summary judgment.…
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Ahmad Izadi v. MacHado (GUS) Ford, Inc., 550 So. 2d 1135 (Fla. 3d DCA 1989)…tortious misrepresentation were alleged in the complaint, we agree that no cause of action for fraud was stated. See National Aircraft Servs., Inc. v. Aeroserv Int’l, Inc., 544 So. 2d 1063 (Fla. 3d DCA 1989); Empire Fire & Marine Ins. Co. v. Black, 546 So. 2d 732 (Fla. 3d DCA 1989). Thus, that count was properly dismissed. 3. Statutory Violation. It follows from what we have said concerning the allegedly misleading nature of the advertisement in making an offer which the ad [*1141] vertiser did not intend t…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Casey v. Welch, 50 So.2d 124 (Fla. 1951)
- Cape COD Tr. Co. v. Wixon, 143 So. 2d 339 (Fla. 2d DCA 1962)
- Winn-Dixie Stores, Inc. v. Manning, 143 So. 2d 339 (Fla. 2d DCA 1962)
- George Hunt, Inc. v. Wash-Bowl, Inc., 348 So. 2d 910 (Fla. 2d DCA 1977)