AUTO-OWNERS INSURANCE COMPANY, APPELLANT,
v.
CINCINNATI INSURANCE COMPANY, APPELLEE
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Auto-Owners Insurance Company appeals a summary judgment decision holding that Cincinnati Insurance Company (uninsured motorist carrier) was prejudiced when the insured settled with the tort-feasor without Cincinnati's notice or consent. The court affirmed, finding that under the circumstances, summary judgment was proper and that Auto-Owners failed to overcome the presumption of prejudice.
The trial court properly granted summary judgment for Cincinnati Insurance Company. Auto-Owners failed to overcome the presumption that Cincinnati was prejudiced by the insured's unnoticed settlement with the tort-feasor, despite evidence from the tort-feasor's deposition regarding her financial condition.
[1] An "under-insured" motorist claim is subject to the valid terms and conditions of the insurance policy, even if statutory provisions would otherwise allow for such covera…
[2] An insurance policy provision requiring the insured to obtain the insurer's written consent before settling with a potentially liable party is enforceable.
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“whether Cincinnati (uninsured motorist carrier) was prejudiced as a result of the insured's entering into a settlement and release with the tort-feasor without giving notice to and obtaining consent from Cincinnati”
Establishes the central legal issue in the case regarding insured motorist carrier prejudice from unnoticed settlements
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAn insured entered into a settlement and release with a tort-feasor (Vanessa Williams) without notifying or obtaining consent from Cincinnati Insuranc…
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WOLF, Judge.
Auto-Owners Insurance Company (Auto-Owners) appeals from a final judgment entered after the trial court granted Cincinnati Insurance Company’s (Cincinnati) motion for summary judgment. The decision of the trial court is affirmed. The issue before the trial court was whether Cincinnati (uninsured motorist carrier) was prejudiced as a result of the insured’s entering into a settlement and release with the tortfeasor without giving notice to and obtaining consent from Cincinnati. The resolution of this issue depended on whether the tortfeasor 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, however, the trial court did not err in granting summary judgment. Both parties moved for summary judgment on the question of whether the insured was prejudiced by the unnoticed settlement. They both alleged that there were no genuine issues of material fact. Both parties relied on the deposition of the tortfeasor to determine her financial condition. A number of times during the summary judgment hearing, the attorney for appellant, Auto-Owners, indicated that the deposition of the tortfeasor would demonstrate whether Cincinnati was prejudiced. At one point, Auto-Owner’s attorney stated, “We have brought to the court the deposition of Vanessa Williams, the tortfeasor, and it’s for the court to review.” The instant case was to be a nonjury trial and the trial judge was to be the ultimate finder of fact. It appears on the record before us that the parties agreed that the pertinent evidence was presented to the trier of fact for resolution.
In addition, appellant never asserts on appeal that it was error to enter the summary judgment because there were disputed issues of material fact. Auto-Owner’s sole contention before this court is that Mrs. Williams’ deposition established that she could not afford to pay a final judgment and, therefore, Cincinnati was not prejudiced by the settlement.
The trial judge determined that Cincinnati Insurance Company was prejudiced. We find no error in the trial court’s determination that Auto-Owners failed to overcome the presumption that Cincinnati was prejudiced by the insured settling the claim without Cincinnati’s consent. McInnis v. State Farm Mut. Auto. Ins. Co., 208 So. 2d 481 (Fla. 1st DCA 1968). It would serve no useful purpose to return this matter to the trial court for further proceedings.
Affirmed.
ERVIN and ALLEN, JJ., concur.
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Scott v. Kirkland, 652 So. 2d 1281 (Fla. 1st DCA 1995)…er, if the insured carries the burden of showing that the insurer was not prejudiced by the release of the tort-feasor. The insured must demonstrate that the tort-feasor is and will remain judgment proof. Auto-Owners Ins. Co. v. Cincinnati Ins. Co., 576 So. 2d 395 (Fla. 1st DCA 1991). In this instance, a question of material fact as to whether Kirkland is in fact judgment-proof was raised by Kirkland’s financial affidavit submitted by appellant in the proceedings below. When a factual issue is raised regardin…
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Authorities Cited
- McINNIS v. State Farm Mut. Auto. Ins. Co., 208 So. 2d 481 (Fla. 4th DCA 1968)
- Watherwax v. Allstate Ins. Co., 538 So. 2d 108 (Fla. 2d DCA 1989)
- Argiro v. Progressive Am. Ins. Co., 510 So. 2d 635 (Fla. 3d DCA 1987)