SANDRA D. WRIGHT, APPELLANT,
v.
LIFE INSURANCE COMPANY OF GEORGIA, APPELLEE
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Sandra Wright, beneficiary of her deceased brother's life insurance policies, appealed a summary judgment dismissing her breach of contract suit against Life Insurance Company of Georgia. The court affirmed the dismissal because Wright failed to comply with the policy's condition precedent requiring written proof of death before filing suit, though she may refile after satisfying this requirement.
A no-action clause in an insurance contract operates as a condition precedent that bars suit until the insured complies with relevant policy provisions. Wright's failure to provide written proof of death was a clear prerequisite to bringing suit, and summary judgment was properly granted. However, Wright is not estopped from refiling her suit if she complies with the condition precedent within the 60-day period after providing written proof.
[1] A "no action" clause in an insurance contract operates as a condition precedent that bars suit against the insurer until the insured complies with the relevant policy pro…
[2] Failure to provide written proof of death to an insurance company, as required by a policy, precludes the filing of a lawsuit against the insurer.
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“A no action clause in an insurance contract operates as a condition precedent that bars suit against the insurer until the insured complies with the relevant policy provisions.”
Establishes the legal principle that no-action clauses are enforceable conditions precedent to litigation.
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Join FLexlaw to unlock all legal intelligenceSandra Wright was the beneficiary of two life insurance policies issued to her brother. After the brother's death, Wright provided Life Insurance Comp…
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POLEN, J.
Sandra Wright, the beneficiary of two life insurance policies issued to her brother (“decedent”), appeals after the trial court granted summary judgment in favor of Life Insurance Company of Georgia (“Life”) without prejudice. She argues that she was not required to comply with the policy provisions that required her to submit written -.proof of the decedent’s death prior to filing suit against Life. We disagree, and, thus, affirm.
Wright brought suit against Life for breach of contract and for declaratory relief. She alleged that Life failed to pay her benefits after the decedent died and after she furnished Life with oral notice of his death. Life subsequently moved for summary judgment on the-grounds that Wright had failed to comply with the condition precedent in the policies stating:
No legal action can be brought against us until 60 days after written proof of death or other loss is given to us.
The trial court then granted Life’s motion on the same grounds and dismissed Wright’s suit without prejudice. This timely appeal followed.
Wright argues that providing Life with oral notice of the decedent’s death should be sufficient to avoid dismissal. We disagree. A no action clause in an insurance contract operates as a condition precedent that bars suit against the insurer until the insured complies with the relevant policy provisions. Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300, 304-05 (Fla. 4th DCA 1995). Here, it is undisputed that Wright failed to furnish Life written proof of the decedent’s death, a clear prerequisite of the policies to bringing suit against Life. Consequently, while the entering of a summary judgment without prejudice may not have been the proper vehicle to resolve this issue (see discussion of abatement, below), we hold that, given the circumstances, the trial court ruled correctly. See id. (holding the trial court properly entered summary judgment against insureds who failed to comply with the no action clause in the insurance policy).
Wright, however, is not estopped from re-filing her suit if she complies with the condition precedent. A dismissal not involving the merits does not bar a subsequent action on the same subject matter. Hassenteufel v. Howard Johnson, Inc. of Florida, 52 So. 2d 810, 812 (Fla.1951). Here, the trial court’s decision did not reach the merits of this action. Thus, we hold that Wright may re-file her suit sixty days after providing Life with written proof of the decedent’s death. See Houstwerth v. Neimiec, 603 So. 2d 88, 89 (Fla. 5th DCA 1992)(holding the dismissal of a replevin action for failure to prosecute was not a ruling on the merits and did not bar an action on the same claim).
In reaching this determination, we note that the outcome here may have been different had Wright asked the trial court for an abatement until she complied with the condition precedent. Generally, the proper remedy for premature litigation is an abatement or stay of the claim. Bierman v. Miller, 639 So. 2d 627, 628 (Fla. 3d DCA 1994). In this case, however, the record does not indicate whether Wright asked the trial court for an abatement. We, therefore, are not inclined to grant a remedy that Wright did not ask for at the trial level. See Willis v. Huff, 736 So. 2d 1272, 1273 (Fla. 4th DCA 1999)(holding the trial court should have granted plaintiffs request to allow him time to comply with the condition precedent to filing suit instead of entering summary judgment against him).
AFFIRMED.
KLEIN and HAZOURI, JJ., concur.
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State Farm Mut. Auto. Ins. Co. v. Curran, 83 So. 3d 793 (Fla. 5th DCA 2011)…plaint; it is not bar to recovery); Commercial Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010, 1022 (Fla.1979) (condition precedent [*804] for pre-suit notice may be cured by amended complaint after compliance); Wright v. Life Ins. Co. of Ga., 762 So. 2d 992, 993 (Fla. 4th DCA 2000) (failure to provide proof of death to life insurance company, a condition precedent, was curable; action abated pending compliance with proper procedure). Here, although Curran prematurely filed suit in contravention of the…1 / 2
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Shuck v. Bank OF Am., N.A., 862 So. 2d 20 (Fla. 2d DCA 2003)…ith the recent decisions of this court and other district courts of appeal. See Jost, 844 So. 2d at 658; Brocato, 811 So. 2d at 829; Baker v. Tenet Healthsystem Hosps., Inc., 780 So. 2d 170, 171-72 (Fla. 2d DCA 2001); Wright v. Life Ins. Co. of Ga., 762 So. 2d 992, 993 (Fla. 4th DCA 2000); Liberty Mut. Ins. Co. v. Farm, Inc., 754 So. 2d 865, 866 (Fla. 3d DCA 2000); Dimick-Russell v. Frankel, 734 So. 2d 486 (Fla. 5th DCA 1999). The dismissal without prejudice of a prematurely filed action eliminates confusion…
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Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300 (Fla. 4th DCA 1995)
- Evans v. State, 660 So. 2d 300 (Fla. 5th DCA 1995)
- Bierman v. Miller, 639 So. 2d 627 (Fla. 3d DCA 1994)
- Hassenteufel v. Johnson, 52 So.2d 810 (Fla. 1951)
- Houswerth v. Neimiec, 603 So. 2d 88 (Fla. 5th DCA 1992)
- Willis v. Huff, 736 So. 2d 1272 (Fla. 4th DCA 1999)