MITCHELL MOSKOWITZ, APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, AN ILLINOIS CORPORATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Mitchell Moskowitz sued State Farm for an uninsured motorist claim following an automobile accident, but State Farm obtained summary judgment against him because he settled with the tortfeasor without providing the statutorily required written notice to State Farm before settling. The appellate court reversed, finding genuine issues of material fact regarding whether Moskowitz's failure to provide written notice should be excused.
The court reversed the summary judgment because genuine issues of material fact exist regarding whether Moskowitz's failure to provide written notice should be excused. The facts that raise these issues include: (1) the allegedly misleading oral response from State Farm about uninsured motorist coverage followed by written erroneous confirmation, and (2) the endorsement of the settlement check by a purported State Farm authorized agent, which raises a question of fact as to whether Moskowitz had a duty to inquire further and whether State Farm consented to the settlement.
[1] A settlement with a tortfeasor before providing written notice to an insurance company may be excused if the insured can demonstrate that the insurer was not prejudiced b…
[2] An insurer's misleading response to an inquiry about coverage, made before a settlement, may create a fact issue excusing an insured's failure to provide statutory writte…
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“The written notification requirement of section 627.727(6) creates only a rebuttable presumption of prejudice to the insurer.”
Establishes that failure to provide written notice is not an absolute bar to recovery; the insured may still prove lack of prejudice to the insurer.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMoskowitz was involved in an automobile accident and settled with the tortfeasor's insurance company (Travelers). He did not provide State Farm with w…
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FRANK, Chief Judge.
In a dispute arising from an automobile accident, the trial court entered summary judgment against the plaintiff, Mitchell Mos-kowitz, on the ground that he improperly settled with the tortfeasor before giving written notice, as is required .by section 627.727(6), Florida Statutes (1993), to his insurance company, State Farm Automobile Insurance Company. The effect of the summary judgment precludes Moskowitz from pursuing an uninsured motorist action against State Farm. We reverse because of genuine issues of material fact.
It is undisputed that Moskowitz did not provide the statutorily required written notice. Moskowitz’s attorney, Todd Berger, however, filed an affidavit in opposition to State Farm’s motion for summary judgment that raised fact issues which, if resolved in Moskowitz’ favor, would excuse his failure to comply with the statute.
First, Berger averred that he called the State Farm claims office and inquired about the existence of personal injury coverage, medical payments coverage, uninsured motorist coverage, and claim numbers. He was given accurate information about everything except the status of the uninsured motorist coverage. This conversation occurred before the date of the settlement. Although State Farm attempts to cast doubt upon the veracity of the affidavit (a fact question), a subsequent written, but erroneous, confirmation by State Farm indicating that there was no uninsured motorist coverage would at least give rise to the inference that there had been an initial inquiry and a misleading response concerning UM coverage. If this issue were to be resolved in Moskowitz’s favor, it might absolve him from failure to follow the statutory requirement of written notice of proposed settlement. See Kovarnik v. Royal Globe Insurance Co., 363 So. 2d 166 (Fla. 4th DCA 1978).
The written notification requirement of section 627.727(6) creates only a rebuttable presumption of prejudice to the insurer. Bankers Insurance Co. v. Macias, 475 So. 2d 1216 (Fla.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 tortfeasor’s insurance company, Travelers, to Moskowitz and his attorney was also endorsed by H.C. Harrison, as “authorized agent” of “State Farm Insurance Company.” The apparent reason for this endorsement was that State Farm Fire & Casualty Company was Moskowitz’s employer’s worker’s compensation carrier. Moskowitz has argued that the endorsement suggests that the company consented to the settlement and thus could not claim prejudice. State Farm has contended that the endorsement by one entity in the State Farm conglomerate could not bind another, entirely independent, company. Whether Moskowitz and his attorney had a duty to inquire further about the status of the agent and the entity on behalf of which he purported to act is, however, a question for the trier of fact.
In light of the foregoing, the summary judgment is reversed and this cause is remanded for further proceedings.
PATTERSON and QUINCE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Yablon v. N. River Ins. Co., 654 So. 2d 1033 (Fla. 4th DCA 1995)…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). See also Moskowitz v. State Farm Mutual Automobile Insurance Co. 646 So. 2d 262 (Fla. 2d DCA 1994) (requirement that insured give written notice to uninsured motorist carrier before settling with tortfeasor creates only rebuttable presumption of prejudice to insurer if no such notification is given; if carrier proves that insur…
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Gray v. State Farm Mut. Auto. Ins. Co., 734 So. 2d 1102 (Fla. 2d DCA 1999)…ritten consent prior to the settlement. Under Florida law, violation of the settlement provision voids the insurance coverage unless the insured shows that the insurer waived the settlement procedure, see Moskowitz v. State Farm, Mut Auto. Ins. Co., 646 So. 2d 262 (Fla. 2d DCA 1994), or conclusively overcomes the presumption of prejudice to the insurer, see General Accident Ins. Co. of Am. v. Taplis, 493 So. 2d 32 (Fla. 5th DCA 1986). The Grays contend that State Farm waived the settlement provisions by its c…
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GAY v. Ass'n Cas. Ins. Co., 103 So. 3d 1028 (Fla. 5th DCA 2012)…led to benefits because there was no written notice as required by the uninsured motorist policy. However, one can waive the written notice requirement when the carrier had actual notice of the claim. See Moskowitz v. State Farm Mut. Auto. Ins. Co., 646 So. 2d 262 (Fla. 2d DCA 1994). It is unclear in this case whether Burkey Risk’s employee told Mr. Gay to cash the check, but not to sign the release. Mr. Gay contends this occurred, but the employee denies that he gave Mr. Gay this advice. Thus, there is a mat…
Authorities Cited
- Bankers Ins. Co. v. MacIas, 475 So. 2d 1216 (Fla. 1985)
- Rafferty v. Progressive Am. Ins. Co., 558 So. 2d 432 (Fla. 2d DCA 1990)
- Gertrude Lucille Bruner v. Bailey, 363 So. 2d 166 (Fla. 4th DCA 1978)