HARRY SMITH, JR., APPELLANT,
v.
CONTINENTAL INSURANCE COMPANY ET AL., APPELLEES
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Smith sued for injuries from a fallen lighting fixture at a hotel, naming the installer and its insurer as defendants. The insurer obtained summary judgment despite the absence of evidence contradicting the existence of an insurance policy, and the appellate court reversed, holding that the insurer's superior access to proof of non-liability required more affirmative evidence than the insurer provided.
Summary judgment was improper. When an insurer seeks summary judgment on grounds of non-liability, it must affirmatively establish that non-liability through clear evidence, not rely on the plaintiff's inability to produce the policy. The insurer's superior access to evidence of the policy requires a higher standard before summary judgment is granted.
[1] A motion for summary judgment must be accompanied by evidence contradicting the non-moving party's claims.
[2] A party seeking summary judgment has the burden to affirmatively demonstrate its non-liability.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The insurer's motion for summary judgment, which was granted, is accompanied by nothing to contradict the plaintiff's claim that Floodlight was covered.”
Establishes the insurer failed to provide evidence supporting its motion for summary judgment.
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Join FLexlaw to unlock all legal intelligenceA lighting fixture fell and injured Smith while he was at the Causeway Inn in Tampa. Floodlight Service Co., the installer, is now dissolved. American…
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Smith alleges that a lighting fixture fell and injured him while he was at the Causeway Inn in Tampa. Among other defendants are Floodlight Service Co., the installer, now dissolved, and American Fire and Casualty Co., which is alleged to have insured Floodlight against liability. The complaint states that a copy of the policy is unavailable.
There are two depositions on file. In one the insurance agent who handled Floodlight’s insurance stated that he had no records going back to the date in question. Asked where one might look for evidence of the policy’s existence, he replied that they should ask the company. The second deposition is that of the former owner of Floodlight. He testified that he had liability coverage and that American Fire and Casualty wrote it.
The insurer’s motion for summary judgment, which was granted, is accompanied by nothing to contradict the plaintiff’s claim that Floodlight was covered. If American Fire and Casualty Company is not liable as an insurer it would be a simple matter for a responsible officer so to assert under oath. Faced with an affidavit or deposition thus establishing non-liability, the plaintiff would either have to suffer summary judgment or seek, pursuant to R. C.P. 1.510(f), 31 F.S.A., authority to pursue the evidence he needs, if he asserts the prospect of finding it. A reviewing judge suspects, in cases like this, that the plaintiff regards these defendants as secondary and accordingly has not pursued the proof of their liability as diligently as he should. Nevertheless, considering the fact that the insurer’s access to proof of non-liability is clearly superior to the plaintiff’s access to proof of liability, it is necessary that more be shown than supports this summary judgment. This is an issue well suited to disposition before trial. If the insurer is to receive a summary judgment, it ought to be because its non-liability is affirmatively shown and not because some doubt remains whether it is not liable or whether its liability is undiscovered. See 6 Moore, Federal Practice § 56.15 [5].
Reversed and remanded.
HOBSON and McNULTY, JJ., concur.
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Coleman M. Stanley v. Bellis, 311 So. 2d 393 (Fla. 4th DCA 1975)…nsurer defendants. While this latter matter may not be evidentiary, it was, we believe, indicative that the question might well be more deeply explored before the plaintiff was summarily deprived of his claim. See Smith v. Continental Insurance Co., 281 So. 2d 393 (2d D.C.A.Fla.1973), in which the court held: “If the insurer is to receive a summary judgment, it ought to be because its non-liability is affirmatively shown and not because some doubt remains whether it is not liable or whether its liability is…