SEA SHORE MOTEL CORPORATION AND SEA SCAPE MOTEL CORPORATION, APPELLANTS,
v.
FIREMAN'S FUND INSURANCE COMPANY AND EMERY-RICHARDSON & ASSOCIATES, INC., APPELLEES
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Sea Shore Motel and Sea Scape Motel appealed a summary judgment in favor of their insurer, Fireman's Fund, and the denial of their motion to amend their complaint. The court reversed, holding that the trial court abused its discretion in denying the motion to amend and that the insureds could potentially demonstrate no prejudice from delayed notice, which would preserve the insurer's liability.
The court held that a motion to amend following summary judgment is not necessarily untimely and lies within the trial court's discretion. When summary judgment should be entered but the unsuccessful party may have a valid cause of action if properly pleaded, the proper procedure is to grant the summary judgment with leave to amend. The court also held that while prejudice to the insurer is presumed from delayed notice, if the insured demonstrates no actual prejudice, the insurer will not be relieved of liability solely based on untimely notice.
[1] A motion to amend a complaint following a final summary judgment is not necessarily untimely and is within the discretion of the trial court.
[2] When summary judgment should be entered and the unsuccessful party may have a cause of action or defense if properly pleaded, the proper procedure is to grant summary jud…
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Join FLexlaw to unlock all legal intelligence“A motion to amend a complaint following a final summary judgment is not necessarily untimely since it is within the discretion of the trial court to grant or deny.”
Establishes the legal standard that amendments after summary judgment are discretionary and not automatically time-barred
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Join FLexlaw to unlock all legal intelligenceThe plaintiffs, motel corporations, filed a three-count complaint against Fireman's Fund Insurance Company and its local agent Emery-Richardson & Asso…
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Plaintiffs-appellants, Sea Shore Motel Corporation and Sea Scape Motel Corporation, appeal both entry of summary final judgment in favor of the defendant, Fireman’s Fund Insurance Company, and denial of their motion to amend their complaint against both defendants. We reverse.
Plaintiffs’ complaint was framed in three counts. Count I alleged breach of an insurance liability contract by Fireman’s Fund for wrongful refusal to defend and/or settle a claim; Count II alleged *652the negligence of defendant, Emery-Richardson & Associates, Inc., the carrier’s local agent; and Count III alleged Fireman’s Fund was responsible for the negligent acts of its agent, Emery-Richardson, because Fireman’s Fund had full knowledge (implied or actual) of its agent’s claim procedures.
Defendant, Fireman’s Fund, moved for a summary judgment and on June 24, 1967, received it. On July 6, 1967, plaintiffs filed a motion for rehearing. On June 24, 1968, before a decision was rendered on the rehearing, plaintiffs filed a motion for leave to amend their complaint. On July 18, 1968, both motions were denied.
The motion to amend was denied as ‘untimely and unsupported by the facts and testimony contained in the record filed herein, and further seeks to inject or introduce new issues into the litigation * *
A motion to amend a complaint following a final summary judgment is not necessarily untimely since it is within the discretion of the trial court to grant or deny.1 Where summary judgment should be entered in a cause and it appears the unsuccessful party may have a cause of action or defense if properly pleaded, the proper procedure is to grant the motion for summary judgment but with leave to amend.2
In this complaint plaintiffs alleged the breach of contract by the insurance company which put in issue the entire question of notice. Therefore when plaintiffs sought to amend their complaint to plead no prejudice to the carrier and agent by delay in notice they were not necessarily interjecting a new issue, but rather were attempting to clarify the issues under prevailing law.
It is now clear that while prejudice to the insurer is presumed from a delayed notice, if the insured can demonstrate that the insurer has not been prejudiced thereby, then the insurer will not be relieved of liability merely by a showing that notice was not given “as soon as practicable.”3
Plaintiffs’ motion to amend should have been granted in this instance.
Therefore, this cause is reversed and remanded for further proceedings consistent herewith.
Reversed and remanded.
CROSS, C. J., and REED, J., concur.
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Cited By (12 total)
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Wilda H. Bradham v. Hayes Enters., Inc., 306 So. 2d 568 (Fla. 1st DCA 1975)…ch was filed after entry of a judgment on the pleadings should have been granted. (Baird v. The Continental Insurance Company, Fla.App. 4th 1970, 237 So. 2d 206) (See also Sea Shore Motel Corp. v. Fireman’s Fund Insurance Company, Fla.App. 4th 1970, 233 So. 2d 651 and Gaymon v. Quinn Menhaden Fisheries of Texas, Inc., Fla.App. 1st 1959, 108 So. 2d 641) Sub judice appellant’s attorney recognized early that his complaint was sub [*572] ject to improvement and should have properly been in at least two counts. H…
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Fatherly v. Cal. Fed. Bank, FSB, 703 So. 2d 1101 (Fla. 2d DCA 1997)…disposition on the merits. On remand, Fatherly shall be permitted to amend her pleadings to properly allege the affirmative defenses contained in her prior answer and in her motion for rehearing. See Sea Shore Motel Corp. v. Fireman’s Fund Ins. Co., 233 So. 2d 651 (Fla. 4th DCA 1970). Reversed and remanded. CAMPBELL, A.C.J., and LAZZARA, J., concur.…
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Baird v. The Cont'l Ins. Co., 237 So. 2d 206 (Fla. 4th DCA 1970)…whereby plaintiffs may avoid the defects revealed in their complaint. See Rule 1.010 and Rule 1.190(e) Florida Rules of Civil Procedure, 30 F.S.A. and Sea Shore Motel Corporation v. Fireman’s Fund Insurance Company, Fourth District Court of Appeal, 233 So. 2d 651, opinion filed March 16, 1970. We do not suggest, inferentially or otherwise, that their effort will be necessarily successful. We determine only that the rules should not be so finely drawn as to prohibit a second chance to plead an acceptable caus…
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
- Duarte v. Stevens Mkts., Inc., 159 So. 2d 236 (Fla. 1963)
- Tiedtke v. Fid. & Cas. Co. OF NEW York, 222 So. 2d 206 (Fla. 1969)
- Roberts v. Braynon, 90 So. 2d 623 (Fla. 1956)
- Deese v. Hartford Accident & Indem. Co., 205 So. 2d 328 (Fla. 1st DCA 1967)