Pedro Fundora, etc. v. Roberto Dangond

• Court: District Court of Appeal of Florida
• Decided: May 1, 2024
• Docket: 2022-1749
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 1, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1749 Lower Tribunal No. 20-24948 ________________

Pedro Fundora, etc., Appellant,

vs.

Roberto Dangond, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge.

Warrior Law, P.A., and Liah C. Catanese, for appellant.

Boyd Richards Parker & Colonnelli, P.L., and Elaine D. Walter, and Yvette R. Lavelle, for appellees.

Before EMAS, SCALES, and LINDSEY, JJ.

PER CURIAM. Pedro Fundora filed suit against Robert Dangond and Maria Guevara

after sustaining injuries when Dangond struck Fundora with a vehicle owned

by Guevara. On appeal, Fundora argues that the trial court erred by granting

Robert Dangond and Maria Guevara’s Motion to Enforce Settlement

Agreement.

During litigation, Fundora sent Dangond and Guevara’s insurer,

Progressive Insurance Company, a demand letter pursuant to section

627.4137(1), Florida Statutes (2011), which provides that an “insurer which

does or may provide liability insurance coverage to pay all or a portion of a

claim which might be made shall provide . . . a statement . . . setting forth

[the information specified in this statute] with regard to each known policy

of insurance . . . .” (Emphasis supplied). In response, Progressive sent

Fundora a letter disclosing only one policy, held by Dangond. Included in

the disclosure was a statement “certify[ing] . . . that the contents of this

disclosure made pursuant to Florida Statute 627.4137 are true and correct.”

Progressive did not disclose any other policies.

When Fundora later offered to settle with Dangond and Guevara,

Fundora sent Progressive a demand letter, again requesting disclosure of

information on additional known policies, and making the settlement offer

contingent on verification that Progressive knew of no other policies:

2 Please be advised that this settlement proposal is contingent upon the following:

1. Written confirmation that there is no umbrella coverage, excess coverage or any other liability insurance coverage available with regard to this accident and that the negligent insured was not in the course and scope of any employment, agency or joint venture at the time of this accident . . . .

Two weeks later, Progressive sent Fundora’s counsel a letter

accepting the settlement offer. Progressive responded to the disclosure

demand by attaching affidavits from Dangond and Guevara stating that there

was no additional coverage.

On the same day that Progressive sent the letter accepting Fundora’s

settlement offer, it sent a separate letter to Fundora disclosing an additional

insurance policy held by Dangond and Guevara’s codefendant, Dangond

Construction, that may provide coverage for the accident. Because

Progressive disclosed this policy after accepting the settlement offer,

Fundora did not have the benefit of reviewing the additional policy prior to

offering to settle. See Underwriters at Lloyd’s London v. Osting-Schwinn,

No. 805-CV-1460T-17TGW, 2008 WL 746829, at *3 (M.D. Fla. Mar. 18,

2008) (“The legislature could not have included the word ‘known’ to impose

only an obligation to disclose that insurer’s own coverage information.”).

Fundora’s request to Progressive for information on any known policies

pursuant to section 627.4137(1) was an essential term of Fundora’s offer to

3 settle with which Progressive failed to comply. See Cheverie v. Geisser, 783

So. 2d 1115, 1119 (Fla. 4th DCA 2001) (holding that the settlement offer was

unenforceable because, despite “repeated demands” pursuant to section

627.4137 and clearly establishing that compliance “was a necessary and

essential element of any settlement acceptance[,]” the defendant “did not

provide [the information] until two months after suit was filed”); Schlosser v.

Perez, 832 So. 2d 179, 183 (Fla. 2d DCA 2002) (holding that the insurer’s

“fail[ure] to provide the disclosure” in accordance with section 627.4137

rendered the settlement unenforceable because the plaintiff “made it clear

that the insurance disclosure was an essential term” and because “the

insurance disclosure is an essential term under Cheverie”)

Because we agree with Fundora that the settlement is unenforceable,

we reverse.

Reversed.