ANDREW RAFFERTY AND HELEN RAFFERTY, HUSBAND AND WIFE, APPELLANTS,
v.
PROGRESSIVE AMERICAN INSURANCE COMPANY, APPELLEE
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Failure to obtain an insurer's consent before settling with a tortfeasor does not preclude underinsured motorist coverage if the settlement did not prejudice the insurer.
[1] An insured's failure to obtain an insurer's written consent before settling with a tortfeasor does not preclude recovery of underinsured motorist benefits if the settleme…
[2] Release of a tortfeasor without an insurer's consent creates a rebuttable presumption of prejudice, placing the burden on the insured to demonstrate a lack of prejudice.
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Join FLexlaw to unlock all legal intelligenceAppellants sought underinsured motorist benefits after an accident where the tortfeasor's liability limits were insufficient. Appellants settled with …
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[*433] PATTERSON, Judge.
This is an appeal from a final summary judgment entered in favor of Progressive American Insurance Company, defendant below, in an action for underinsured motorist coverage. We reverse and remand.
Appellants filed a complaint against appellee for underinsured motorist benefits as a result of a motor vehicle accident in which Andrew Rafferty sustained injuries. Allstate Insurance Company provided $20,-000 liability limits to the tortfeasor, Tony Cozad, through his mother’s insurance policy. There were three claims against the Allstate policy. After ascertaining that the Cozads were unable to respond personally in damages, appellants accepted their share of the policy limits. Appellee asserts that its policy provides no underinsured motorist coverage because the insured settled without appellee’s written consent.
Appellants’ failure to obtain consent from appellee before settlement with the tortfeasor does not prohibit recovery for underinsured motorist benefits if the settlement did not prejudice the insurer. Watherwax v. Allstate Ins. Co., 538 So. 2d 108 (Fla. 2d DCA 1989). Release of the tortfeasor without the insurer’s consent raises a rebuttable presumption of prejudice. Appellants have the burden to rebut this presumption and demonstrate a genuine issue of material fact as to whether the release of the tortfeasor prejudiced appellee. Watherwax. Appellants presented facts about the Cozads’ financial condition sufficient to raise a factual issue as to whether the settlement prejudiced appellee.
Even if appellants could not prove that the Cozads are judgment proof, the record reflects that further discovery might show that appellee would have settled with the Cozads based on its underwriting standards. If this is true, then appellee cannot claim prejudice.
An issue of material fact exists with respect to prejudice to appellee; therefore, the final summary judgment is reversed and the case remanded for further proceedings.
FRANK, A.C.J., and ALTENBERND, J., concur.
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State Farm Mut. Auto. Ins. Co. v. Hassen, 650 So. 2d 128 (Fla. 2d DCA 1995)…rm raises the issue of prejudice because of the Hassens’ unauthorized release of the tortfeasors, we further direct the trial court to resolve that issue in accordance with the principles stated in Rafferty v. Progressive American Insurance Company, 558 So. 2d 432 (Fla. 2d DCA 1990). Reversed and remanded with directions; question certified. THREADGILL, A.C.J., and PATTERSON, J., concur. . Documents in the record appear to support this statement. . This section was amended by a comprehensive act which und…
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Moskowitz v. State Farm Mut. Auto. Ins. Co., 646 So. 2d 262 (Fla. 2d DCA 1994)…a.1985). If the carrier proves that the insured did not comply with the statute, the insured may then go forward and show that failure to obtain the consent to settle did not prejudice the insurer. See Rafferty v. Progressive American Insurance Co., 558 So. 2d 432 (Fla. 2d DCA 1990). In this case the settlement check issued by the tortfea-sor’s insurance company, Travelers, to Moskowitz and his attorney was also endorsed by H.C. Harrison, as “authorized agent” of [*264] “State Farm Insurance Company.” The app…
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Muth v. AIU Ins. Co., 982 So. 2d 749 (Fla. 4th DCA 2008)…ilure to obtain such evidence sooner did not result from delay. Appellant filed a motion for rehearing acknowledging the presumption of prejudice but arguing that the presumption is rebuttable. Citing Rafferty v. Progressive American Insurance Co., 558 So. 2d 432 (Fla. 2d DCA 1990), she asserted that if the insured can demonstrate a genuine issue of material fact as to whether the release of the tortfeasor prejudiced the carrier, a summary judgment predicated upon the insured’s failure to obtain the carrier’…1 / 2
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- Watherwax v. Allstate Ins. Co., 538 So. 2d 108 (Fla. 2d DCA 1989)