AMERICAN RELIANCE INSURANCE COMPANY, APPELLANT,
v.
RODNEY PEREZ, A MINOR, BY AND THROUGH HIS MOTHER, NATURAL GUARDIAN AND NEXT FRIEND STELLA PEREZ, AND STELLA PEREZ, INDIVIDUALLY, AND CHRISTOPHER BROWN, A MINOR, BY AND THROUGH HIS MOTHER, NATURAL GUARDIAN AND NEXT FRIEND, BERNICE BROWN, AND BERNICE BROWN, INDIVIDUALLY, APPELLEES
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American Reliance Insurance Company appealed a partial summary judgment requiring it to provide homeowners coverage for injuries caused when the insured's son brought a firearm to school and shot another student. The court reversed, holding that the insureds materially breached the policy by settling the underlying lawsuit without the insurer's consent, thereby relieving the insurer of its coverage obligations.
Yes. The insured's failure to comply with the policy provision requiring the insurer's consent to settlements materially breached the policy and relieved American Reliance of its obligations under the policy as a matter of law, precluding the action against the carrier.
[1] An insured's failure to obtain the insurer's consent before settling a claim, when the policy requires the insured to help the insurer make settlements, relieves the insu…
[2] An insurance policy provision requiring the insured to help the insurer make settlements implies a requirement for the insured to obtain the insurer's consent before sett…
Previewing 2 of 4 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“while an insured is free to enter into a reasonable settlement when its insurer has wrongfully refused to provide it with a defense to a suit, we find that the insured is not similarly free to independently engage in such settlements where, as here, [the insurer] had not declined a defense to suit.”
Establishes the key legal principle that unsettled insureds without insurer consent are only permissible when the insurer wrongfully refuses defense; here the insurer had provided defense so no independent settlement authority existed.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRodney Perez, a minor, brought a firearm to high school and shot fellow student Christopher Brown. The Browns sued both Rodney and his mother Stella P…
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COPE, Judge.
American Reliance Insurance Company appeals a partial summary judgment holding that it is required to provide homeowners insurance coverage to its insured, Stella Perez. We conclude that the order was erroneously entered and reverse.
The homeowner’s son, Rodney Perez, brought a firearm to high school and shot a fellow student, Christopher Brown. Brown and his mother filed a lawsuit against the Perezes, seeking damages for Christopher Brown’s personal injuries. The complaint pled claims for battery (Count I) and negligence (Count II) against Rodney Perez. It also alleged a negligence claim against Stella Perez, contending in essence that she had failed to supervise her son.
American Reliance undertook to defend the lawsuit on the Perezes’ behalf but did so under a reservation of rights as to coverage. Thereafter, the insurer instituted a declaratory judgment action against the Browns and the Perezes seeking a declaration that there was no coverage because of the insurance policy’s intentional acts exclusion.
Without the consent of American Reliance, the Perezes entered into a settlement with the Browns. The Perezes agreed to a $200,-000 consent judgment against them and assigned to the Browns all of their rights against American Reliance. Stella Perez and Rodney Perez both stipulated that they had been negligent. In return, the Browns agreed not to execute against the Perezes and agreed to seek recovery exclusively against American Reliance.
Relying on the Perezes’ stipulation that they had been negligent, the Browns moved for a partial summary judgment establishing coverage under the American Reliance policy. American Reliance moved for summary judgment on the theory that the Perezes had materially breached the insurance policy by entering into the settlement without American Reliance’s consent. The trial court entered partial summary judgment on coverage in favor of the Browns, and American Reliance has appealed.2
We conclude that the summary judgment was improvidently entered in favor of the Browns, and that American Reliance is entitled to judgment in its favor. As stated in First American Title Insurance Co. v. National Union Fire Insurance Co., 695 So. 2d 475 (Fla. 3d DCA 1997):
[Wjhile an insured is free to enter into a reasonable settlement when its insurer has wrongfully refused to provide it with a defense to a suit, we find that the insured is not similarly free to independently engage in such settlements where, as here, the insurer had not declined a defense to suit. Consequently, we agree with the trial court that the insured’s failure to comply with the relevant policy provisions relieved the insurer of its obligations under the policy and precluded this action against the carrier as a matter of law.
Id. at 477. In First American Title, the insurance policy directed the insured not to “ ‘admit liability for or settle a claim ... without the written consent of the [insurer].’ ” Id. at 476.
The Perezes and the Browns argue that the American Reliance policy does not contain language prohibiting settlement without the insurer’s consent. It is true that the present policy is worded differently, but we think the substance is the same. The homeowners policy provided:
3. Duties After Loss. In case of an accident or occurrence, the insured will perform the following duties that apply. You will help us by seeing that these duties are performed:
c. at our request, help us:
(1) to make settlement;
(3) with the conduct of suits and attend hearings and trials;
(4) to secure and give evidence and obtain the attendance of witnesses;
e. the insured will not except at the insured’s own cost, voluntarily'make payment, assume obligation or incur expense other than for first aid to others at the time of the bodily injury.
(Emphasis added). It has been held that this language requires the insured to obtain the insurer’s consent before settling. See United Nat'l Ins. Co. v. Jacobs, 754 F.Supp. 865, 870 (M.D.Fla.1990).
The order under review is reversed and the cause remanded with directions to enter judgment in favor of American Reliance.
Reversed and remanded.
. The appeal is cognizable under Canal Insurance Co. v. Reed, 666 So. 2d 888 (Fla.1996); see also Fla. R.App. P. 9.110(n) (effective January 1, 1997).
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Hrynkiw v. Allstate Floridian Ins. Co., 844 So. 2d 739 (Fla. 5th DCA 2003)…AFFIRMED. MONACO, J. and LAMBERT, B„ Associate Judge, concur. . Declaratory judgment actions are typically filed to resolve coverage disputes. See, e.g., Landis v. Allstate Ins. Co., 546 So. 2d 1051 (Fla.1989); American Reliance Ins. Co. v. Perez, 712 So. 2d 1211 (Fla. 3d DCA 1998). . See Deni Assocs. of Florida, Inc. v. State Farm Fire & Cas. Ins. Co., 711 So. 2d 1135 [*742] (Fla.1998); Union Am. Ins. Co. v. Maynard, 752 So. 2d 1266 (Fla. 4th DCA 2000); Premier Ins. Co. v. Adams, 632 So. 2d 1054, 1055 (Fla…
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Universal Underwriters Ins. Co. v. Stathopoulos, 113 So. 3d 957 (Fla. 2d DCA 2013)…have resolved appeals in similar postures under rule 9.110(m) or Reed, albeit without explicit jurisdictional analysis. See, e.g., Wilshire Ins. Co. v. Birch Crest Apartments, Inc., 69 So. 3d 975 (Fla. 4th DCA 2011); Am. Reliance Ins. Co. v. Perez, 712 So. 2d 1211 (Fla. 3d DCA 1998). To the extent that the present case is in conflict with these decisions, we certify the conflict. We reach the same conclusion as did the First District in Mercury Insurance Co. of Florida v. Markham, 938 So. 2d 607 (Fla. 1st DCA…
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Aguero v. First Am. Ins. Co., 927 So. 2d 894 (Fla. 3d DCA 2005)…rs without genuine issue that the insured breached the cooperation clause by unilaterally purporting to “settle” the case despite (and probably because of) the insurer’s good faith offer of an appropriate defense. See Am. Reliance Ins. Co. v. Perez, 712 So. 2d 1211 (Fla. 3d DCA 1998).…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canal Ins. Co. v. Reed, 666 So. 2d 888 (Fla. 1996)
- First Am. Title Ins. Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 695 So. 2d 475 (Fla. 3d DCA 1997)
- United Nat'l Ins. v. Jacobs, 754 F. Supp. 865 (M.D. Fla. 1990)