Reckner v. Foremost Insurance Co.

376 So. 2d 426, 1979 Fla. App. LEXIS 15655

Opinion

PER CURIAM.

This is an appeal from the dismissal of an action against a municipality on the authority of Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967). Subsequently, the Florida Supreme Court has ruled that Modlin, supra, has no application to actions brought pursuant to Section 768.28, Florida Statutes (1974). Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979). Therefore, the order of dismissal must be reversed. However, we find no error in the trial court’s dismissal of the action against the employees of the municipality because of the absence of any allegations necessary under Section 768.-28(9), Florida Statutes (1974). Accordingly, this cause is affirmed in part and reversed in part with directions that the trial court conduct further proceedings in accordance with this opinion and the Supreme Court’s decision in Commercial Carrier Corporation, supra.

ANSTEAD and BERANEK, JJ., and SI-MONS, STUART M., Associate Judge, concur.