NEIDA'S BOUTIQUE, INC., APPELLANTS,
v.
GABOR AND COMPANY ET AL., APPELLEES
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Neida's Boutique appeals a dismissal of its complaint against an insurance agent and insurer for allegedly negligently failing to procure a renewal and increase in fire insurance coverage. The court affirmed the dismissal, holding that the complaint failed to allege an enforceable agreement to obtain insurance and that the trial court properly dismissed for failure to comply with the filing deadline.
The court held that the amended complaint did not state a cause of action because it failed to allege an agreement between the parties to secure a policy of insurance or specify the terms and conditions of the allegedly requested additional insurance. The court also held that the trial court did not abuse its discretion in dismissing the complaint for failure to comply with the ten-day filing deadline.
[1] A complaint seeking damages for failure to procure insurance must allege an agreement to secure a policy of insurance and specify the terms and conditions of the requeste…
[2] A mere request for additional insurance does not establish a contract to obtain or supply such insurance.
Previewing 2 of 3 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 amended complaint did not state a cause of action against either appellee in that, among other things, the complaint did not allege an agreement between the parties to secure a policy of insurance nor did said complaint specify the terms and conditions of the allegedly requested additional insurance.”
Establishes that failure to allege an agreement and specific terms defeats the cause of action for insurance procurement.
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Join FLexlaw to unlock all legal intelligenceNeida's Boutique sought damages from Gabor and Company, Inc. (an insurance agent for Parliament Insurance Company) for negligently failing to renew a …
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PER CURIAM.
Appellant, plaintiff below, appeals from a final order of dismissal entered in favor of appellees, defendants below.
Appellant’s amended complaint sought damages from appellee, Gabor and Company, Inc., as agents for appellee, Parliament Insurance Company, for negligently failing to procure both a renewal of a prior fire insurance policy issued by Parliament and an increase in the amount of coverage on said policy. In addition, the amended complaint also sought damages from appellee Parliament by virtue of an alternate theory that a renewal policy with increased coverage was actually in full force and effect on the date that appellant’s business suffered serious fire damage, which was shortly after the original policy of insurance had expired.
Appellees moved to dismiss the amended complaint for: failure to attach the policy of insurance that was allegedly in effect as of the date of the fire; failure to allege that the requested increase and extension of coverage was in fact obtainable under the terms and conditions as requested; and for the reason that there is no legal duty on behalf of an insurer to insure, merely because the same was requested, nor is there a duty for an agent to obtain insurance.
Thereafter, on April 13, 1976, the trial court entered an order dismissing the amended complaint with leave to amend within ten days from the date of the entrance of said order. On May 12, 1976, a second amended complaint was filed by appellants followed on May 13, 1976, by the trial court’s final order of dismissal. A post tfial “motion for rehearing, request for reconsideration and motion to vacate” was denied and this appeal follows.
Appellant’s basic contentions are twofold. First, appellant contends that its amended complaint stated a cause of action entitling it to receive damages. Second, even assuming said amended complaint did not state a cause of action, appellant argues that the court erred in entering its order of dismissal (for failure to file its second amended complaint within the ten day period, as per the order) when in fact, the second amended complaint had been filed prior to the entrance of the order of dismissal.
After carefully reviewing the record, briefs and arguments of counsel, we are of the opinion that the final order of dismissal was proper and affirm. The amended complaint did not state a cause of action against either appellee in that, among other things, the complaint did not allege an agreement between the parties to secure a policy of insurance nor did said complaint specify the terms and conditions of the allegedly requested additional insurance. Hettenbaugh v. Keyes-Ozon-Fincher Insurance, Inc., 147 So. 2d 328 (Fla.3d DCA 1962). The allegations show only a request by appellant for additional insurance which falls short of a contract to obtain or supply such insurance. Leonard Taylor Jewelers, Inc. v. Hartnett, Inc., 222 So. 2d 243 (Fla.3d DCA 1969).
In addition, we find no abuse of discretion on the part of the trial judge in dismissing appellant’s amended complaint with prejudice upon the failure of appellant to comply with the court’s order allowing a second amended complaint to be filed within ten days. The record does not reveal any justification for appellant’s failure to timely file its pleading nor does the record reveal that appellant sought any additional time in which to file. Fla.R.Civ.P. 1.420(b); Lasley v. Cushing, 244 So. 2d 770 (Fla.1st DCA 1971); Reynolds v. Deep South Sports, Inc., 211 So. 2d 37 (Fla.2d DCA 1968).
Any other points raised by either side on appeal have been considered by the court and have been deemed to be without merit.
Accordingly, the final order of dismissal is hereby affirmed.
Affirmed.
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Carolann D. Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)…o ordered. BARKETT, C.J., and OVERTON, SHAW, GRIMES, KOGAN and HARDING, JJ., concur. . New River Yachting, Inc. v. Bacchiocchi, 407 So. 2d 607 (Fla. 4th DCA 1981), review denied, 415 So. 2d 1360 (Fla.1982); Neida’s Boutique, Inc. v. Gabor and Co., 348 So. 2d 1196 (Fla. 3d DCA 1977), cert. denied, 366 So. 2d 883 (Fla.1978); Reynolds v. Deep South Sports, Inc., 211 So. 2d 37 (Fla. 2d DCA 1968). . According to rule 1.500(c), .Florida Rules of Civil Procedure, "[a] party may plead or otherwise defend at any tim…
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Sekot Labs., Inc. v. Gleason, 585 So. 2d 286 (Fla. 3d DCA 1990)…We deny defendants’ motion for rehearing. Defendants argue that our decision conflicts with Neida’s Boutique, Inc. v. Gabor & Co., 348 So. 2d 1196, 1197 (Fla. 3d DCA 1977), cert. denied, 366 So. 2d 883 (Fla.1978); Miami Auto Auction, Inc. v. Friendly Enterprises, Inc., 257 So. 2d 69, 70 (Fla. 3d DCA 1972) and E & E Electric Contractors, Inc. v. Singer, 236 So. 2d 195 (Fla. 3d DCA), cert. dismi…
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Allied Gen., Inc. v. Helliwell, 429 So. 2d 1287 (Fla. 3d DCA 1983)…PER CURIAM. Affirmed. Neida’s Boutique, Inc. v. Gabor and Co., 348 So. 2d 1196 (Fla.3d DCA 1977), cert. denied, 366 So. 2d 883 (Fla.1978); Miami Auto Auction, Inc. v. Friendly Enterprises, Inc., 257 So. 2d 69 (Fla.3d DCA 1972); E. & E. Electric Contractors, Inc. v. Singer, 236 So. 2d 195 (Fla.3d DCA), cert. dismissed, 239 So.…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Reynolds v. Deep S. Sports, Inc., 211 So. 2d 37 (Fla. 2d DCA 1968)
- Lasley v. Gibb Cushing, 244 So. 2d 770 (Fla. 1st DCA 1971)
- Hettenbaugh v. Hettenbaugh, 147 So. 2d 328 (Fla. 3d DCA 1962)
- City OF Hialeah v. Goldie Davis, 147 So. 2d 328 (Fla. 3d DCA 1962)
- Leonard Taylor Jewelers, Inc. v. Hartnett, Inc., 222 So. 2d 243 (Fla. 3d DCA 1969)