Florida Insurance Guaranty Association v. Manuel V. Feijoo, M.D., and Manuel V. Feijoo, M.D., P.A., etc.

• Court: District Court of Appeal of Florida
• Decided: April 10, 2024
• Docket: 2022-1529
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 10, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1529 Lower Tribunal No. 17-14026 SP ________________

Florida Insurance Guaranty Association, Appellant,

vs.

Manuel V. Feijoo, M.D., and Manuel V. Feijoo, M.D., P.A., etc., Appellees.

An Appeal from the County Court for Miami-Dade County, Elijah A. Levitt, Judge.

Kubicki Draper, P.A., and Caryn L. Bellus and Jacqueline M. Bertelsen and Barbara E. Fox, for appellant.

Douglas H. Stein, P.A., and Douglas H. Stein; Law Offices of Kenneth B. Schurr, P.A., and Kenneth B. Schurr, for appellees.

Before FERNANDEZ, GORDO and LOBREE, JJ.

PER CURIAM.

Florida Insurance Guaranty Association (“FIGA”) appeals an order of final summary judgment entered in favor of Manuel V. Feijoo, M.D., and

Manuel V. Feijoo, M.D., P.A., a/a/o Jaqueline O’Reilly (“Feijoo”). Because

the trial court erred in granting a motion for summary judgment on a claim

that was not pled, we reverse.

BACKGROUND

In 2017, Feijoo filed suit against Windhaven Insurance Company

(“Windhaven”) raising two counts: (1) for breach of contract for failure to pay

PIP benefits; and (2) for declaratory relief establishing whether Windhaven

had improperly cancelled the subject insurance policy for alleged

nonpayment without notice. FIGA was substituted as defendant after

Windhaven was declared insolvent. In 2021, Feijoo filed an amended

complaint now naming FIGA as defendant but raising identical claims.

While the litigation was pending, FIGA tendered full payment to Feijoo

for its claim. Feijoo subsequently filed a motion for summary judgment as to

its declaratory judgment claim now alleging it was entitled as a matter of law

to a declaration that: (1) the subject insurance policy was in full force and

effect on the date of loss and throughout the term of the policy; (2) the policy

was not void ab initio; and (3) there was no material misrepresentation on

the policy application. FIGA filed its own motion for final summary judgment

2 and response asserting, in part, that Feijoo’s motion sought judgment on

claims not pled.

The trial court held a hearing on the motions and entered an order

granting Feijoo’s motion for summary judgment and denying FIGA’s motion.

FIGA moved for rehearing reasserting its arguments, but the trial court

denied the motion. This appeal followed.

ANALYSIS

“We review an order granting final summary judgment de novo.”

Navarro v. Citizens Prop. Ins. Corp., 353 So. 3d 1276, 1279 (Fla. 3d DCA

2023). It is well-established Florida law that a party is not entitled to

summary judgment on a cause of action that was never pled. See Kuehne

& Nagel, Inc. v. Lewis Marine Supply, Inc., 365 So. 2d 204, 205 (Fla. 3d DCA

1978) (“It is axiomatic that a party is never entitled to summary judgment

based on a cause of action not pled in the complaint.”); Wilson v. Jacks, 310

So. 3d 545, 547 (Fla. 1st DCA 2021) (“[I]ssues and claims not specifically

pleaded in a party’s complaint or answer cannot be considered by a trial court

reviewing a summary judgment motion.”); Fernandez v. Fla. Nat’l Coll., Inc.,

925 So. 2d 1096, 1101 (Fla. 3d DCA 2006) (“[I]ssues that are not pled in a

complaint cannot be considered by the trial court at a summary judgment

hearing.”).

3 Review of the record shows Feijoo’s motion sought summary judgment

on a declaratory claim it did not plead. In the applicable amended complaint,

Feijoo’s declaratory judgment claim sought a declaration that the subject

insurance policy was not properly cancelled for alleged nonpayment.

However, in its motion for summary judgment, Feijoo for the first time

asserted it was entitled to summary judgment on a declaratory judgment

claim for a declaration that the subject policy was in full force and effect, not

void ab initio, and there was no material misrepresentation in the application

for insurance. While both were claims for declaratory judgment, the actual

declaration sought in the motion for summary judgment was substantially

different than the one in the complaint. Accordingly, we find the trial court

erred in granting Feijoo’s motion as Feijoo was not entitled to summary

judgment on a declaratory relief claim it never pled.

Reversed and remanded.