THE PHOENIX INSURANCE COMPANY, A CONNECTICUT CORPORATION, APPELLANT.
v.
CHARLES W. BOWEN, APPELLEE
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Phoenix Insurance Company appealed a summary judgment against it in a declaratory judgment action regarding uninsured motorist coverage. The central issue was whether the insured's release of the at-fault driver without the insurer's written consent violated an exclusionary provision in the policy. The court reversed, finding the release effective and holding the trial court erred in granting summary judgment for the defendant insured.
The court held that the insured's release was legally effective to prevent recovery under the uninsured motorist endorsement. The defendant's evidence was insufficient in law to raise a genuine issue of material fact that would impeach or invalidate the release, therefore summary judgment should have been entered for the plaintiff insurance company, not the defendant.
“This endorsement does not apply: (a) to bodily injury to an insured, * * with respect to which such insured * * * shall, without written consent of the company, make any settlement with * * * any person * * * who may be legally liable therefor”
The exclusionary provision of the insurance policy that was violated when the insured settled without the insurer's written consent.
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Join FLexlaw to unlock all legal intelligenceThe insured defendant was involved in an automobile accident with a car driven by Hector Gonzalez and owned by Felipe Calzadilla. The defendant execut…
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This is an appeal by the plaintiff insurance company of a final- decree following an order granting defendant’s motion for summary judgment in a declaratory decree or judgment action. The action was brought to determine the rights.of the parties relating to coverage under an uninsured 'motorist endorsement of an insurance- policy. ' ' . ' ' .
The defendant insured was involved in an automobile accident with’ a car driven by Hector Gonzalez and owned by Felipe Cal-zadilla. Thereafter, defendant executed a release which, reads in. pertinent part as follows:
“FOR AND IN CONSIDERATION OF, the sum of One Dollar and Other Valuable Consideration paid to me in hand or on my behalf, receipt of which is hereby acknowledged, I/We, do *752hereby release, acquit and forever discharge Hector Gonzalez of and from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses and compensation, on account of any and all known and unknown bodily injuries and property damages resulting or to result from accident that occurred on or about the 8th day of February, 1963. It is further understood and agreed that this settlement is the compromise of a doubtful and disputed claim, * *
The insurance policy under review contains the following exclusionary provision pertaining to the uninsured motorist endorsement :
“This endorsement does not apply: (a) to bodily injury to an insured, * * with respect to which such insured * * * shall, without written consent of the company, make any settlement with * * * any person * * * who may be legally liable therefor; *
Prior to executing the above release, the defendant neither asked for nor was given the written consent of the plaintiff.
Defendant testified on deposition that he had read the release fully before signing it but thought he was merely releasing Gonzalez so that Gonzalez could get his driver’s license back in compliance with Section 324.051 F.S., F.S.A.
We find that the trial court misconstrued the'legal effect of the evidence before it, and granted summary judgment in favor of the wrong party. Defendant’s evidence is insufficient in law to raise a genuine issue of material fact impeaching the release. Such being the case, Oren v. General Accident Fire and Life Assur. Corp., Fla.App. 1965, 175 So.2d 581 controls.
The final decree is reversed and the cause remanded with directions to enter a summary final decree for the plaintiff.-
Reversed and remanded.
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Praxedes DeCESPEDES v. Prudence Mut. Cas. Co. of Chicago, 193 So. 2d 224 (Fla. 3d DCA 1966)…troyed any possible right of subrogation and breached the clause that he will do nothing to prejudice that right. See American Fidelity Fire Insurance Co. v. Richardson, Fla.App.1966, 189 So. 2d 486, and Phoenix Insurance Co. v. Bowen, Fla.App.1965, 178 So. 2d 751, following Oren v. General Accident Fire & Life Assurance Corp., Fla.App.1965, 175 So. 2d 581, wherein we have held that an unauthorized release by the insured could preclude subsequent recovery [*227] from the insurer under the uninsured motorist c…
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Bass v. AETNA Cas. & Sur. Co. OF Hartford, 199 So. 2d 790 (Fla. 4th DCA 1967)…on clause was clear and unambiguous, and the insured was denied recovery because of its failure to obtain written consent of the insurer prior to obtaining judgments against an uninsured motorist.1 [*792] In Phoenix Ins. Co. v. Bowen, Fla.App. 1965, 178 So. 2d 751, the Third District cited its own decision in the Oren case, supra, in holding that a release given to the uninsured motorist without seeking the insurance company’s consent, contrary to the exclusion clause, precluded recovery by the insured. The…
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Am. Fid. Fire Ins. Co. v. Richardson, 189 So. 2d 486 (Fla. 3d DCA 1966)…suit, may preclude a recovery by an insured under the uninsured motorist provision of an insurance policy. Oren v. General Accident Fire and Life Assurance Corporation, Fla.App.1965, 175 So. 2d 581; Phoenix Insurance Company v. Bowen, Fla.App.1965, 178 So. 2d 751. Therefore, if the allegations of the counterclaim are true and the appellees are unable to avoid the effect of the same, then the accident was not one for which the appellant-insurer must respond. We do not determine the applicability of the limit…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Oren v. Gen. Accident Fire & Life Assurance Corp., Ltd., 175 So. 2d 581 (Fla. 3d DCA 1965)