HOMER M. VANATER, DOING BUSINESS AS KIRBY'S SHOE STORE, AND KIRBY'S SHOE CORPORATION OF FLORIDA, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
ALLSTATE INSURANCE COMPANY, AN ILLINOIS CORPORATION, APPELLEE
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The court held that the trial court erred in instructing the jury that a mutual mistake must be proven beyond a reasonable doubt for reformation of an insurance policy.
Appellant-plaintiff Homer M. Vanater sued for reformation of a fire insurance policy and payment under the reformed policy. The trial court instructed…
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Appellant-plaintiff, Homer M. Vanater, appeals a final judgment denying reformation of a fire insurance policy in an action for reformation of the insurance policy and seeking payment under the policy as reformed. We reverse.
The sole point on appeal which we consider is that the trial court erred when it instructed the jury that appellant must prove beyond a reasonable doubt that a mutual mistake had been made in the issuance of the insurance policy.
The general rule is that when, because of a mutual mistake, a written instrument does not express the true agreement of the parties, equity will reform the written instrument where the mutual mistake has been established by clear and convincing evidence. 76 C.J.S. Reformation of Instruments §§ 26, 84 (1952); Bell Corporation v. Bahama Bar & Restaurant, Inc., 74 So.2d 292 (Fla.1954); Coastal States Life Insurance Co. v. Raphael, 183 So.2d 274 (Fla.App.1966) and cases cited n. 1. *41It was, therefore, error for the trial court to instruct the jury that the mutual mistake need be established beyond a reasonable doubt. 4
Accordingly, the judgment is reversed and the cause remanded1 for further proceedings consistent with the views expressed herein.
Reversed and remanded.
REED, C. J., and CROSS and OWEN, JJ., concur.
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Allstate Ins. Co. v. Vanater, 297 So. 2d 293 (Fla. 1974)…DEKLE, Justice. Certiorari was granted to review the decision of the District Court of Appeal, Fourth District, in Vanater v. Allstate Ins. Co., reported at 279 So. 2d 40 (1973), which conflicts with Fidelity Phenix Fire Ins. Co. of New York v. Hilliard, 65 Fla. 443, 62 So. 585 (1913), Rosenthal v. First National Fire Ins. Co. of United States, 74 Fla. 371, 77 So. 92 (1917), Crosby v. International Investment Co., 10…
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Malt v. R. J. Mueller Enters., Inc., 396 So. 2d 1174 (Fla. 4th DCA 1981)…Company v. Hansford, 245 So. 2d 911 (Fla. 1st DCA 1971). Here, the tenant offered clear and convincing evidence of a mutual mistake, the size of the building, and the trial court properly reformed the contract. Vanater v. Allstate Insurance Company, 279 So. 2d 40 (Fla. 4th DCA 1973), aff’d 297 So. 2d 293 (Fla.1974). On cross appeal the tenant asserts the finding of $1,600 for breach of the sublease was inadequate. The tenant also contends the court erred in failing to award approximately $370 in damages in…
Authorities Cited
- The Emp'rs' Liab. Assurance Corp., Ltd. v. Royals Farm Supply, Inc., 186 So. 2d 317 (Fla. 2d DCA 1966)
- Bell Corp. v. Bahama BAR & Rest., Inc., 74 So. 2d 292 (Fla. 1954)
- Coastal States Life Ins. Co. v. Raphael, 183 So. 2d 274 (Fla. 3d DCA 1966)