AMERICAN SECURITY INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLANT,
v.
ROBERT J. PERRY, APPELLEE
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The appellate court affirmed a summary judgment for the plaintiff in a garnishment action, holding that the garnishee insurer's defense of lack of insured cooperation was unavailable. The court found the insurer did not make adequate efforts to locate the insured and the insured's absence was not prejudicial.
No, there was no genuine issue of material fact. The insurer's defense of lack of cooperation was unavailable because the insurer failed to make an adequate effort to locate the insured, and the insured's absence at trial was not prejudicial to the defense.
“It affirmatively appears without genuine issue that the defense was not available under the facts of this case for two reasons: (1) The insurer failed to make an adequate effort to locate the insured. ... (2) the insured's absence at the trial was not prejudicial to the defense of the cause of action because the insured had by admissions in the record eliminated himself as a material witness.”
This quote explains the court's reasoning for rejecting the insurer's defense.
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Join FLexlaw to unlock all legal intelligenceThe garnishee, American Security Insurance Company, appealed a summary final judgment entered in favor of the plaintiff-garnishor, Robert J. Perry. Th…
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The garnishee, American Security Insurance Company, appeals a summary final judgment for the plaintiff-garnishor, Robert J. Perry. The appellant has presented five points on appeal, all of which argue in essence that there was a genuine issue of material fact upon appellant’s claimed defense that its policy was rendered unenforceable by its insured’s lack of co-operation. The claimed issue was based upon the failure of one of the insured to appear at trial.
It affirmatively appears without genuine issue that the defense was not available under the facts of this case for two reasons: (1) The insurer failed to make an adequate effort to locate the insured. Cf. American Fire & Casualty Co. v. Vliet, 148 Fla. 568, 4 So.2d 862, 139 A.L.R. 767; (2) the insured’s absence at the trial was not prejudicial to the defense of the cause of action because the insured had by admissions in the record eliminated himself as a material witness. Cf. Barnes v. Pennsylvania Threshermen & F. Mut. Cas. Ins. Co., Fla. App.1962, 146 So.2d 119; American Fire and Casualty Company v. Collura, Fla. App.1964, 163 So.2d 784.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Am. Fire & Cas. Co. v. Vliet, 148 Fla. 568 (Fla. 1941)
- Am. Fire & Cas. Co. v. Collura, 163 So. 2d 784 (Fla. 2d DCA 1964)
- Barnes v. Pa. Threshermen & Farmers' Mut. Cas. Ins. Co., 146 So. 2d 119 (Fla. 3d DCA 1962)