MIDLAND NATIONAL INSURANCE COMPANY, APPELLANT,
v.
CLYDE GARY WATSON, A MINOR, BY HIS NEXT FRIEND, THELMA J. GAINEY, FORMERLY KNOWN AS THELMA J. WATSON, AND LE JEUNE ROAD HOSPITAL, INC., A DISSOLVED FLORIDA CORPORATION, APPELLEES
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Midland National Insurance Company appeals a summary judgment against it in a garnishment proceeding brought by a minor plaintiff injured due to alleged wrongful discharge by an insured hospital. The court addresses whether the insurer's failure to receive timely notice of the injury and lawsuit, combined with its reservation of rights during defense, precluded its coverage defenses as a matter of law.
The insurer's defenses were not precluded by estoppel because the insurer gave timely notice of its reservation of rights to the insured (the hospital) the day after receiving notice of the injury and lawsuit. However, the hospital's failure to notify the insurer within approximately 23 months of the injury constituted lack of timely notice, which is a condition precedent to the insurer's liability under the policy.
“an insurer may, by timely notice to the insured, reserve its right to claim that the policy does not cover the situation at issue, while defending the action.”
Establishes the proper legal standard for insurer reservation of rights; the insurer need only notify the insured, not the plaintiff.
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Join FLexlaw to unlock all legal intelligenceA minor plaintiff was injured on February 25, 1961, due to alleged wrongful discharge from Le Jeune Road Hospital. An action filed in August 1961 resu…
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This is an appeal by the garnishee-insurer, Midland National Insurance Company, from a summary final judgment in favor of the plaintiff, Clyde Gary Watson, a minor, by his next friend Thelma J. Gainey, formerly known as Thelma J. Watson.
The plaintiff was injured on February 25, 1961, due to his wrongful discharge from the defendant-insured, Le Jeune Road Hospital, Inc. An action was filed against the hospital in August, 1961 which resulted in an award of $5,000 compensatory damages to the plaintiff and $10,000 punitive damages in favor of the plaintiff’s mother. On appeal, this court affirmed the award of compensatory damages but reversed the award of punitive damages.1
The policy of insurance contained provisions requiring the insured to give timely notice of an accident or • a claim against the insured as a condition precedent to the insurer’s liability.
The first notice of the injury and the law suit given to the insurer, as the professional liability and malpractice insurer of the hospital, was the receipt of the amended complaint on January 10, 1963. On January 11, 1963, the insurer sent a letter to the office of the attorney for the hospital in which it was stated that the insurer was handling the matter under a complete reservation of rights due to the delay in reporting the incident and other factors regarding coverage. On February 14, 1963, the insurer’s attorney notified the attorney for the hospital that the insurer was handling the defense of the law suit under a reservation of rights due to the delay in notification. Following the judgment, the insurer and the hospital signed a non-waiver agreement to permit a full defense and appeal without incurring any admission of liability of the insurer under its policy, and to preserve without estoppel, waiver or forfeiture any of the rights to any of the parties to the agreement.
After the appeal, plaintiff filed a complaint for supplementary relief against the insurer which, upon stipulation, was treated as a writ of garnishment. The lower court found that the defenses of the insurer, though well pleaded, were precluded as a matter of law by the doctrine of estoppel.
The insurer contends that the lower court erred in finding that its defenses were precluded by the doctrine of estoppel since it conducted the defense of the law suit only after notifying the hospital it was do*405ing so under a complete reservation of -.rights.
The plaintiff asserts that the proper procedure for the insurer to follow is to -notify the plaintiff of its reservation of rights in advance of trial or else its rights -under the policy are waived.2 Plaintiff’s .assertion is contrary to the well established -rule that, “an insurer may, by timely notice -to the insured, reserve its right to claim that the policy does not cover the situation .at issue, while defending the action.” 3
The evidence in the record shows that the insurer informed the hospital by letter •of its position the day after it received •notice of the injury and the law suits.
We conclude from this that the in•surer did give timely notice of its position to the insured. Thus, the lower court erred -in finding that the insurer’s defenses were precluded by the doctrine of estoppel.
The evidence also indicates that the hos-pital did not notify the insurer until approximately twenty-three months after the -injury occurred and seventeen months after -the law suit was filed.
We have determined from the facts .-and circumstances of this case that as a matter of law this was not timely notice -which is a condition precedent to the in•surer’s liability.4
For the reasons stated the judgment appealed is reversed and the cause remanded for further proceedings.
Reversed and remanded.
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Cited By (12 total)
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LoBELLO v. State Farm Fla. Ins. Co., 152 So. 3d 595 (Fla. 2d DCA 2014)…nd, if the undisputed evidence will not support a finding that the insured gave notice to the insurer as soon as practicable, then a finding that notice was timely given is unsupportable. Waldrep, 400 So. 2d at 785; Midland Nat’l Ins. Co. v. Watson, 188 So. 2d 403, 405 (Fla. 3d DCA 1966); Clena Invs., 2012 WL 1004851, at *4. IV. DISCUSSION We begin our discussion of this case by noting that the circuit court had the right to change its interlocutory rulings on the various motions for summary judgment that t…
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Stevens v. Horne, 325 So. 2d 459 (Fla. 4th DCA 1975)…is estopped to assert them. The trial judge held that there was no waiver of defenses. The rule in Florida appears to be contrary to that urged by the union. The Third District, in the case of Midland National Insurance Company v. Watson, Fla.App., 188 So. 2d 403 (1966), recognized and applied the rule that, “an insurer may, by timely notice to the insured, reserve its right to claim that the policy does not cover the situation at issue, while defending the action.” The authority cited for this rule was the…
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Vanguard Ins. Co. v. Townsend, 544 So. 2d 1153 (Fla. 5th DCA 1989)…s to give full force and effect to the insurer’s reservation of rights agreement or timely notice. See Giffen Roofing Company, Inc. v. D.H.S. Developers, Inc., 442 So. 2d 396 (Fla. 5th DCA 1983); Centennial; Midland National Insurance Co. v. Watson, 188 So. 2d 403 (Fla. 3d DCA 1966); Stevens v. Horne, 325 So. 2d 459 (Fla. 4th DCA 1975); Phoenix Assur. Co. of New York v. Hendry Corporation, 267 So. 2d 92 (Fla. 2d DCA 1972), writ discharged, 277 So. 2d 532 (Fla.1973). Under these circumstances, res judicata or…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State Farm Mut. Auto. Ins. Co. v. Ranson, 121 So. 2d 175 (Fla. 2d DCA 1960)
- Hartford Accident & Indem. Co. v. Mills, 171 So. 2d 190 (Fla. 1st DCA 1965)
- Morton v. Indem. Ins. Co. of N. Am., 137 So. 2d 618 (Fla. 2d DCA 1962)
- LE Juene Rd. Hosp. v. Watson, 171 So. 2d 202 (Fla. 3d DCA 1965)
- Atl. Nat'l Ins. Co. v. Johnson, 178 So. 2d 733 (Fla. 3d DCA 1965)