FLORIDA HOME INSURANCE COMPANY, APPELLANT,
v.
MORRIS BRAVERMAN AND LUCILLE BRAVERMAN, HIS WIFE, APPELLEES
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Florida Home Insurance Company appeals a summary judgment awarding the full face amount of a mortgagee's title insurance policy to the Bravermans for a defective title, but denying interest. The court affirms liability but reverses the damage award, holding that insureds must prove actual damages rather than recover the policy face amount as a matter of law, and remands for determination of damages and interest.
Summary judgment on the insurance company's liability was proper as no material factual issues existed. However, the face amount cannot be awarded as a matter of law; insureds must prove by competent evidence the actual amount of damage to their security, measured as the difference between the mortgage's market value with proper title versus its value with the defect. Interest is recoverable from the date the obligation accrued.
“it was necessary for the plaintiffs to prove their damages, the measure of which is normally the difference between the market value of the mortgage, if the lien thereof were as insured, and the market value of the mortgage with the title imperfection.”
Establishes the proper measure of damages in title insurance cases, adopted from Goode v. Federal Title and Insurance Corp.
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Join FLexlaw to unlock all legal intelligenceFlorida Home Insurance Company issued a mortgagee's policy of title insurance to Morris and Lucille Braverman. A defect in title was discovered that i…
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This appeal and cross-appeal is from the summary final judgment of the circuit court awarding plaintiff the face amount of a mortgagee’s policy of title insurance as damages, but refusing to award interest thereon.
Appellant, insurance company, was the defendant below and raises two points; (1) it was error to grant appellees’ motion for summary judgment when issues of fact existed; (2) the court erred in granting judgment for the face amount of the policy. Appellees’ cross-appeal raises the single proposition that the circuit court erred in failing to award interest.
In regard to appellant’s assignments of error, we agree as to one and disagree as to the other. We affirm the court’s granting of summary judgment on the contract of insurance, and reverse the award of damages.
*513After careful review of the record we agree that there were no material issues of fact and the court properly granted summary judgment in regard to appellant’s liability.1
The trial court did err, however, in granting judgment for the face amount of the policy. This point has recently been determined by the Second District Court of Appeal in Goode v. Federal Title and Insurance Corp., Fla.App.1964, 162 So.2d 269, wherein that court stated the rule to be:
“While we cannot agree that it is necessary for the plaintiffs to foreclose the mortgage in order to prove damages, it was necessary for the plaintiffs to prove their damages, the measure of which is normally the difference between the market value of the mortgage, if the lien thereof were as insured, and the market value of the mortgage with the title imperfection. This is the extent to which the plaintiffs’ security has been impaired by the defect in title.”
The above thereby imposes upon the appellees the burden o.f establishing by competent evidence the amount of damage they have sustained. Appellees have not complied with this requirement. This is not to say that appellees may not be entitled to recover the face amount of the policy if they establish by competent evidence that amount as their damage. But they are not entitled, as a matter of law, to recover the face amount simply by establishing that the loss was within the risk insured against by the policy. It is the insured’s burden to establish the amount of his loss up to the face amount of the policy. The face amount of the policy is the upper-limit for which the insurance company will be liable.
The trial court, therefore, erred in granting judgment for the face amount of the policy without having received sufficient evidence as to the amount of damage. In fairness to the learned circuit judge, we must point out that the Goode case was decided after the entry of his order.
The trial court also erred when it refused to award appellees’ interest. Appel-lees were entitled to recover interest from the date that the debt was due.2
Upon remand, after the court has determined the amount of damage, if any, suffered by appellees, it will as part of the judgment, award interest from the date the obligation accrued.
Accordingly, the judgment appealed from is affirmed in part, reversed in part and remanded for proceedings not inconsistent herewith.
Affirmed in part, reversed in part and remanded.
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Standard Accident Ins. Co. v. Gavin, 184 So. 2d 229 (Fla. 1st DCA 1966)…ly, interest is due on the amount of damages which plaintiff is entitled to recover under her contract with defendant from the date said damages were sustained and became due and payable. Florida Home Insurance Company vs. Braverman, (Fla.App.1964), 163 So. 2d 512; Huntley vs. Baya (Fla.[App.] 1962), 136 So. 2d 248; Parker vs. Brinson Construction Company (Fla.1955), 78 So. 2d 873; National Union Fire Insurance Company vs. Cone (Fla.1920), [80 Fla. 265], 85 So. 2d 913 [85 So. 913].” The judgment appealed is…
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Title & Tr. Co. OF Fla. v. Parker, 468 So. 2d 520 (Fla. 1st DCA 1985)…Statutes (1983). The mere fact that the Parkers’ loss was caused by a risk covered by the policy, see Parker I, supra, does not, as a matter of law, entitle them to recover the face amount of the policy. Florida Home Insurance Company v. Braverman, 163 So. 2d 512 (Fla. 3d DCA 1964). Thus, they are not automatically entitled to damages of $305,000, representing the face amount of the policy, but rather they must prove their actual loss. In assessing the extent to which the Parkers met this burden, we think it…
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Jacquin-Florida Distilling Co. v. Reynolds, 319 So. 2d 604 (Fla. 1st DCA 1975)…e to pay when due, irrespective of Jacquin’s good faith in contesting the claim. Parker v. Brinson Constr. Co., 78 So. 2d 873 (Fla.1955); Nationwide Mutual Ins. Co. v. Griffin, 222 So. 2d 754 (Fla.App. 4th, 1969); Florida Home Ins. Co. v. Braverman, 163 So. 2d 512 (Fla.App. 3d, 1964). The judgment below will be affirmed insofar as it resolves the principal controversy favorably to appellee, but reversed with instructions for the entry of an amended judgment to include costs, to be taxed in the trial court, a…
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
- Johnson v. Studstill, 71 So. 2d 251 (Fla. 1954)
- Hardy J. Owens v. State, 71 So. 2d 741 (Fla. 1954)
- Evans v. Borkowski, 139 So. 2d 472 (Fla. 1st DCA 1962)
- Goode v. Fed. Title & Ins. Corp., 162 So. 2d 269 (Fla. 2d DCA 1964)
- Boyd L. Jones, Jr. v. Hartford Accident & Indem. Co., 109 So. 2d 582 (Fla. 1st DCA 1959)