MARY SCOTT, APPELLANT,
v.
THOMAS JEROME KIRKLAND, ET AL., APPELLEES
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Court affirmed that Scott's release of tortfeasor Kirkland was valid, but reversed summary judgment for Allstate on prejudice, holding that a factual question exists whether Kirkland is judgment-proof, which must be resolved at trial.
A non-consensual settlement with a tortfeasor creates a presumption of prejudice to the insurer, but the insured may recover under an uninsured motorist provision by proving the tortfeasor is judgment-proof, and summary judgment is inappropriate when a factual issue exists regarding such prejudice.
[1] A non-consensual settlement between an insured and a tortfeasor creates a presumption of prejudice to the insurer, but the insured may recover under an uninsured motorist…
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Join FLexlaw to unlock all legal intelligenceScott signed a release settling with Kirkland, the tortfeasor in an automobile accident, without Allstate's consent. Kirkland submitted a financial af…
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PER CURIAM.
We review an appeal from an order of final summary judgment entered in favor of Kirkland and Allstate Insurance Co.
We affirm the judgment of the trial court that the release signed by Scott was valid and released Kirkland, the third party tort-fea-sor, from any and all liability in regard to the automobile accident.
We reverse, however, on the issue of whether Allstate was prejudiced by the non-consensual settlement with Kirkland. Such a settlement creates a presumption of prejudice to the insurer. Recovery against an insurance company under an uninsured motorist provision is not barred, however, if the insured carries the burden of showing that the insurer was not prejudiced by the release of the tortfeasor. The insured must demonstrate that the tortfeasor 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 regarding prejudice to the insurer, summary judgment is inappropriate. Johnson v. Home Indemnity Co., 377 So. 2d 40 (Fla. 1st DCA 1979).
We, therefore, reverse on this issue and remand for proceedings in accordance with this opinion.
ERVIN, MINER and WOLF, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Progressive Am. Ins. Co. v. Heimler (Fla. 4th DCA 2026)
Authorities Cited
- James v. James, 377 So. 2d 40 (Fla. 5th DCA 1979)
- Auto-Owners Ins. Co. v. Cincinnati Ins. Co., 576 So. 2d 395 (Fla. 1st DCA 1991)