Armstrong v. Bana

District Court of Appeal of Florida

Armstrong v. Bana

258 So. 2d 41, 1972 Fla. App. LEXIS 7187

CourtDistrict Court of Appeal of Florida

DecidedFebruary 15, 1972

DocketNo. 71-916

StatusPublished

This text of 258 So. 2d 41 (Armstrong v. Bana) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Armstrong v. Bana, 258 So. 2d 41, 1972 Fla. App. LEXIS 7187 (Fla. Ct. App. 1972).

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Opinion

PER CURIAM.

Appellant, plaintiff in the trial court, appeals from a summary judgment in favor of the appellee, Providence Washington Insurance Company.

The plaintiff filed a personal injury action, as a result of an automobile accident, against Jose Bana as the alleged tort fea-sor, and also named the appellee insurance company as a defendant as the liability carrier for Bana. After the taking of depositions, the insurance carrier moved for a summary judgment contending that its insured [Bana] refused to cooperate and therefore it was prejudiced and was entitled to deny coverage, citing Tiedke v. Fidelity and Casualty Company of New York, Fla.1969, 222 So.2d 206; Swiss Na[42]*42tional Insurance Company v. Martorella, Fla.App.1970, 239 So.2d 144, to which the trial court agreed and entered the summary judgment under review.

It is apparent from this record that there is a bona fide dispute as to cooperation by the insured with the insurance carrier, which might excuse coverage on the part of the carrier if it has been prejudiced by such failure of cooperation. However, we do not believe that this record establishes sufficiently, for the purpose of a summary judgment, that the carrier has been prejudiced by such failure of cooperation.

Therefore, we reverse the summary judgment in favor of the insurance carrier and return the matter to the trial court with directions [if moved for] to grant severance to the carrier on the issue of coverage, pursuant to Stecher v. Pomeroy, Fla.1971, 253 So.2d 421.

Reversed and remanded, with directions.

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PER CURIAM.

Appellant, plaintiff in the trial court, appeals from a summary judgment in favor of the appellee, Providence Washington Insurance Company.

The plaintiff filed a personal injury action, as a result of an automobile accident, against Jose Bana as the alleged tort fea-sor, and also named the appellee insurance company as a defendant as the liability carrier for Bana. After the taking of depositions, the insurance carrier moved for a summary judgment contending that its insured [Bana] refused to cooperate and therefore it was prejudiced and was entitled to deny coverage, citing Tiedke v. Fidelity and Casualty Company of New York, Fla.1969, 222 So.2d 206; Swiss Na[42]*42tional Insurance Company v. Martorella, Fla.App.1970, 239 So.2d 144, to which the trial court agreed and entered the summary judgment under review.

It is apparent from this record that there is a bona fide dispute as to cooperation by the insured with the insurance carrier, which might excuse coverage on the part of the carrier if it has been prejudiced by such failure of cooperation. However, we do not believe that this record establishes sufficiently, for the purpose of a summary judgment, that the carrier has been prejudiced by such failure of cooperation.

Therefore, we reverse the summary judgment in favor of the insurance carrier and return the matter to the trial court with directions [if moved for] to grant severance to the carrier on the issue of coverage, pursuant to Stecher v. Pomeroy, Fla.1971, 253 So.2d 421.

Reversed and remanded, with directions.

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258 So. 2d 41, 1972 Fla. App. LEXIS 7187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/armstrong-v-bana-fladistctapp-1972.

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