T. D. MCCURLEY, APPELLANT,
v.
AUTO-OWNERS INS. CO. ET AL., APPELLEES
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Court reversed summary judgment dismissing fraud claim where insurer's agent allegedly misrepresented that a release covered only vehicle damage when it actually covered all claims including bodily injury.
A summary judgment dismissing a fraud claim must be reversed when the plaintiff's testimony, if credited, could support a finding that an insurance agent fraudulently misrepresented the scope of a release.
[1] In reviewing summary judgment on a fraud claim, the court must credit the plaintiff's testimony and may not grant summary judgment if that testimony could support a findi…
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Join FLexlaw to unlock all legal intelligence“In reviewing the summary judgment dismissing McCurley's claim, we must credit his testimony from which a jury could find the insurance agent falsely and fraudulently misrepresented the contents of the release.”
Court's standard for reviewing summary judgment in fraud cases where credibility is disputed.
McCurley signed a release in exchange for $2,000 from an insurance agent, claiming the agent told him the payment was for automobile damage alone, not…
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SMITH, Judge.
McCurley appeals from an adverse summary judgment dismissing his action against the owner, driver, and insurer of a vehicle which collided with McCurley’s vehicle. McCurley’s complaint sought to set aside, as having been obtained by fraud, a complete release signed by McCurley and delivered to the insurer’s agent in' exchange for $2,000. The release recites that the payment was in full settlement of all claims, but McCurley testified the agent told him the payment and release were for his automobile damage alone, not for McCurley’s bodily injury. McCurley did not read the release and, if his testimony is taken as true, he apparently overlooked the recitation on the face of the draft that $700 of the payment was for “P. D.” and $1,300 was for “B. I.”
In reviewing the summary judgment dismissing McCurley’s claim, we must credit his testimony from which a jury could find the insurance agent falsely and fraudulently misrepresented the contents of the release. The record does not show sufficiently for a summary judgment that McCurley unjustifiably relied on the asserted misrepresentations or that McCurley was negligent in failing to ascertain the true facts. Florida East Coast Ry. Co. v. Thompson, 93 Fla. 30, 111 So. 525 (1927); Buchanan v. Clinton, 293 So. 2d 120 (Fla. 1st DCA 1974); Bryant v. Small, 236 So. 2d 150 (Fla. 3d DCA 1970). The movants did not demonstrate the absence of any material issue of fact.
REVERSED.
MILLS, Acting C. J., and ERVIN, J., concur.
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Citator
Cited By
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Nu-Air Mfg. Co. v. Frank B. Hall & Co. OF NEW York, 822 F.2d 987 (11th Cir. 1987)…er v. Scott, 417 F. 2d 471, 473 (10th Cir.1969) (citation omitted). While there is a point at which this trust becomes unreasonable, this determination should not be made on a motion for summary judgment. See, e.g., McCurley v. Auto-Owners Ins. Co., 356 So. 2d 68 (Fla.Dist.Ct.App.1978).33 Thus, we remand Nu-Air’s tort and contract claims against Inter-credit for trial before a jury. REVERSED and REMANDED. . Intercredit, a division of one of the nation’s largest insurance brokerage firms, specializes in the…1 / 2
Authorities Cited
- Fla. E. Coast Ry. Co. v. Thompson, 93 Fla. 30 (Fla. 1927)
- Harper v. State, 236 So. 2d 150 (Fla. 1st DCA 1970)
- Bryant v. Evans Small, 236 So. 2d 150 (Fla. 3d DCA 1970)
- Carlyle v. Carlyle, 293 So. 2d 120 (Fla. 1st DCA 1974)
- Buchanan v. Areta E. Clinton, 293 So. 2d 120 (Fla. 1st DCA 1974)