GARISH BRAHMBHATT, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MUNISH BRAHMBHATT, APPELLANT,
v.
ALLSTATE INDEMNITY COMPANY, APPELLEE
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The Fourth District Court of Appeal affirmed summary judgment denying uninsured motorist (UM) coverage for a murder victim, finding the appeal frivolous because the assailants' vehicle had no meaningful connection to the insured's death.
Uninsured motorist coverage does not apply because the connection between the insured's injury (murder) and the assailants' vehicle is too attenuated. The relationship between the vehicle and the incident is even more remote than in Race v. Nationwide, where the court found no UM coverage.
[1] A frivolous appeal is one so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed.
[2] An appeal is frivolous if its character can be determined without argument or research, based on a bare inspection of the record and assignments of error.
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Join FLexlaw to unlock all legal intelligence“A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed.”
Establishes the legal standard for determining whether an appeal is frivolous
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Join FLexlaw to unlock all legal intelligenceThe insured stopped his vehicle while driving to assist people with a disabled vehicle on the highway. After exiting his car, the people forced him in…
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KLEIN, Judge.
We withdraw the opinion filed April 5, 1995 and substitute the following opinion.
In Treat v. State ex rel. Mitton, 121 Fla. 509, 163 So. 883 (1935), our supreme court defined a frivolous appeal as follows:
A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed. See Hopkinson v. Kennedy, 225 Mass. 231, 114 N.E. 204 (1916). It must be one so clearly untenable, or the insufficiency of which is so manifest on a bare inspection of the record and assignments of error, that its character may be determined without argument or research. (Footnote omitted).
Although appellee has not requested this relief, we have determined that the issue raised is so lacking in merit as to be frivolous on its face, and we therefore remand to the trial court with directions that appellate costs and attorney’s fees be assessed pursuant to section 57.105, Florida Statutes. See Heil-man v. Amerifirst Sav. & Loan, 507 So. 2d 732 (Fla. 4th DCA) rev. denied, 518 So. 2d 1275 (1987).
Appellant appeals a summary judgment determining that UM coverage did not apply to an incident in which the insured was murdered. The undisputed facts reflect that the insured stopped while driving his vehicle in order to assist some people whom he saw stopped beside the highway with a disabled vehicle. After the decedent got out of his vehicle, they forced him into some bushes at gunpoint, shot him to death, and drove off with his vehicle.
In Race v. Nationwide Mutual Fire Insurance Co., 542 So. 2d 347, 351 (1989), the insured was rear-ended while stopped at a light, and after getting out of his car he was assaulted and injured by the motorist who rear-ended him. The insured sought UM coverage for the injuries arising out of the assault, and our supreme court concluded:
Clearly, the connection between Race’s injury and Thompson’s motor vehicle was too tenuous to provide UM coverage.
Appellant does not argue that Race is incorrect, or that we should ask our supreme court to revisit it,1 but rather cites it as authority to support his position. Considering that every member of our supreme court agreed that there was “clearly” no UM coverage in Race, just three years prior to the filing of this suit, and that there is even less of a relationship between the assailant’s vehicle and the incident in this case than there was in Race, we conclude that this appeal is frivolous.
We therefore affirm and direct the trial court to award appellate attorney’s fees and costs under section 57.105, Florida Statutes.
WARNER and SHAHOOD, JJ., concur. . Florida Bar rule 4-3.1 provides:
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.
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Dep't OF Revenue v. Smatt, 679 So. 2d 1191 (Fla. 5th DCA 1996)…ase, the case law and the actions of the DOR, we find this appeal has no merit and it was apparent at the time the appeal was filed. Morrone v. State Farm Fire and Cas. Ins. Co., 664 So. 2d 972 (Fla. 4th DCA 1995); Brahmbhatt v. Allstate Indem. Co., 655 So. 2d 1264 (Fla. 4th DCA 1995). We affirm the order of the trial court and remand with instructions that the complaint against Smatt be dismissed with prejudice and that the trial court determine appropriate appellate attorney’s fees and costs. AFFIRMED; REMA…
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Brockway v. Town OF Golfview, 675 So. 2d 699 (Fla. 4th DCA 1996)…e may be taken in the preceding litany of cases because there is no reluctance whatsoever by this court in approving, or even sua sponte imposing attorney’s fee awards under section 57.105 in appropriate cases. See Brahmbhatt v. Allstate Indem. Co., 655 So. 2d 1264 (Fla. 4th DCA 1995). Accordingly, the award of fees under section 57.105 is REVERSED. GROSS, J., and GROSSMAN, MELVIN BRUCE, Associate JJ., concur.…
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Rehman v. ECC Int'l Corp., 707 So. 2d 752 (Fla. 5th DCA 1998)…Olde MacDonald's Farms Inns Corp. v. McDill Columbus Corp., 476 So. 2d 315 (Fla. 5th DCA 1985). . See § 57.105, Fla. Stat; Department of Revenue on Behalf of Glover v. Smatt, 679 So. 2d 1191 (Fla. 5th DCA 1996); Brahmbhatt v. Allstate Indemn. Co., 655 So. 2d 1264 (Fla. 4th DCA 1995); Sykes v. St. Andrews School, 625 So. 2d 1317 (Fla. 4th DCA 1993); Zibell v. Chan, 535 So. 2d 708 (Fla. 5th DCA 1988).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Treat v. State, 121 Fla. 509 (Fla. 1935)
- Race v. Nationwide Mut. Fire Ins. Co., 542 So. 2d 347 (Fla. 1989)
- Heilman v. Amerifirst Sav. & Loan & Classical Dev. Corp., 507 So. 2d 732 (Fla. 4th DCA 1987)