Putnam v. Government Employees Insurance Co.

District Court of Appeal of Florida

Putnam v. Government Employees Insurance Co.

409 So. 2d 259, 1982 Fla. App. LEXIS 19208

CourtDistrict Court of Appeal of Florida

DecidedFebruary 10, 1982

DocketNo. 80-882

StatusPublished

Cited by1 cases

This text of 409 So. 2d 259 (Putnam v. Government Employees Insurance Co.) 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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Putnam v. Government Employees Insurance Co., 409 So. 2d 259, 1982 Fla. App. LEXIS 19208 (Fla. Ct. App. 1982).

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Opinion

OPINION ON REHEARING

ANSTEAD, Judge.

By petition for rehearing the appellee has correctly pointed out that the appellant failed to properly raise in the trial court the issue of lack of prejudice as required by our prior decision in McInnis v. State Farm Mutual Automobile Insurance Co., 208 So.2d 481 (Fla. 4th DCA 1968). In our [260]*260previous opinion we held that there was an issue of fact as to whether the appellee was prejudiced by the appellant’s admitted violation of a policy provision requiring the insurance company’s consent to a settlement with the tortfeasors responsible for appellant’s injuries. McInnis requires that lack of prejudice be specifically pleaded in response to an insurance company’s reliance on such a provision.

Despite the appellant’s failure to properly raise the issue we might still have reversed in the interest of justice to allow the appellant to properly raise the issue since there is evidence of lack of prejudice in the record. See Gold Coast Crane Service, Inc. v. Watier, 257 So.2d 249 (Fla.1971). However, subsequent to our decision herein the Florida Supreme Court has explicitly ruled that such procedure would be improper; Dober v. Worrell, 401 So.2d 1322 (Fla.1981). In Dober the Supreme Court expressly receded from that portion of the Gold Coast Crane Service decision which would have authorized us to remand the case for resolution of the issue of lack of prejudice.

Accordingly, we grant the petition for rehearing, withdraw our opinion of May 13, 1981, and hereby affirm the judgment of the trial court.

LETTS, C. J., and HURLEY, J., concur.

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OPINION ON REHEARING

ANSTEAD, Judge.

By petition for rehearing the appellee has correctly pointed out that the appellant failed to properly raise in the trial court the issue of lack of prejudice as required by our prior decision in McInnis v. State Farm Mutual Automobile Insurance Co., 208 So.2d 481 (Fla. 4th DCA 1968). In our [260]*260previous opinion we held that there was an issue of fact as to whether the appellee was prejudiced by the appellant’s admitted violation of a policy provision requiring the insurance company’s consent to a settlement with the tortfeasors responsible for appellant’s injuries. McInnis requires that lack of prejudice be specifically pleaded in response to an insurance company’s reliance on such a provision.

Despite the appellant’s failure to properly raise the issue we might still have reversed in the interest of justice to allow the appellant to properly raise the issue since there is evidence of lack of prejudice in the record. See Gold Coast Crane Service, Inc. v. Watier, 257 So.2d 249 (Fla.1971). However, subsequent to our decision herein the Florida Supreme Court has explicitly ruled that such procedure would be improper; Dober v. Worrell, 401 So.2d 1322 (Fla.1981). In Dober the Supreme Court expressly receded from that portion of the Gold Coast Crane Service decision which would have authorized us to remand the case for resolution of the issue of lack of prejudice.

Accordingly, we grant the petition for rehearing, withdraw our opinion of May 13, 1981, and hereby affirm the judgment of the trial court.

LETTS, C. J., and HURLEY, J., concur.

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409 So. 2d 259, 1982 Fla. App. LEXIS 19208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/putnam-v-government-employees-insurance-co-fladistctapp-1982.

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