American Security Insurance v. Perry

198 So. 2d 86, 1967 Fla. App. LEXIS 4742

Opinion

PER CURIAM.

The garnishee, American Security Insurance Company, appeals a summary final judgment for the plaintiff-garnishor, Robert J. Perry. The appellant has presented five points on appeal, all of which argue in essence that there was a genuine issue of material fact upon appellant’s claimed defense that its policy was rendered unenforceable by its insured’s lack of co-operation. The claimed issue was based upon the failure of one of the insured to appear at trial.

It affirmatively appears without genuine issue that the defense was not available under the facts of this case for two reasons: (1) The insurer failed to make an adequate effort to locate the insured. Cf. American Fire & Casualty Co. v. Vliet, 148 Fla. 568, 4 So.2d 862, 139 A.L.R. 767; (2) the insured’s absence at the trial was not prejudicial to the defense of the cause of action because the insured had by admissions in the record eliminated himself as a material witness. Cf. Barnes v. Pennsylvania Threshermen & F. Mut. Cas. Ins. Co., Fla. App.1962, 146 So.2d 119; American Fire and Casualty Company v. Collura, Fla. App.1964, 163 So.2d 784.

Affirmed.