State Farm Mutual Automobile Insurance v. Benton

District Court of Appeal of Florida

State Farm Mutual Automobile Insurance v. Benton

322 So. 2d 618, 1975 Fla. App. LEXIS 18823

CourtDistrict Court of Appeal of Florida

DecidedNovember 12, 1975

DocketNo. 75-190

StatusPublished

Cited by1 cases

This text of 322 So. 2d 618 (State Farm Mutual Automobile Insurance v. Benton) 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.

Bluebook

State Farm Mutual Automobile Insurance v. Benton, 322 So. 2d 618, 1975 Fla. App. LEXIS 18823 (Fla. Ct. App. 1975).

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Opinion

PER CURIAM.

This is an appeal by the no-fault insurance carrier from an order of equitable distribution entered pursuant to Fla.Stat. § 627.736(3) (b). The order will be affirmed. This opinion is written to express our view as to the record ordinarily necessary to support such an appeal.

The insured received no-fault payments, then received a settlement after filing suit against the negligent party. The insured thereupon filed a “Petition for Equitable Distribution,” and served the petition on her no-fault insurance carrier together with a notice of hearing for the trial judge’s motion calendar. The insured and the carrier appeared at the time and place specified. There was no objection of any kind by the carrier to the procedure employed.¹ The petition set out facts which, if proved, would have supported the discretion of the trial judge to make an award in the amount represented by the order appealed.² The insurance company offered no evidence of any kind and, therefore, the cause was submitted upon the oral argument presented. The order appealed was entered and this appeal followed.

The burden of the carrier’s argument here is that the trial court departed from the guide lines set forth in State Farm Automobile Insurance Co. v. Hauser, Fla.App.1973, 281 So.2d 563, and Hartford Accident & Indemnity Co. v. Diaz, Fla. App.1974, 296 So.2d 504. We are unable to determine that question upon the record before us. The carrier argues that it is the duty of the moving party in the trial court to make a record that will justify the equitable distribution. See Liberty Mutual Insurance Company v. Guillet, Fla.App. 1974, 294 So.2d 1. This is true. Nevertheless, when we are presented with a record showing a petition alleging facts sufficient to support the discretion of trial judge in making the award and showing no objection to the procedure employed and revealing no effort by the party subsequently appealing the award to object or offer any evidence, then we hold that the dissatisfied party is estopped to object on appeal to the procedure employed. See Marsh v. Sarasota County, Fla.App.1957, 97 So.2d 312, and Paul v. Ranter, Fla. App.1963, 155 So.2d 402.

Affirmed.

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PER CURIAM.

This is an appeal by the no-fault insurance carrier from an order of equitable distribution entered pursuant to Fla.Stat. § 627.736(3) (b). The order will be affirmed. This opinion is written to express our view as to the record ordinarily necessary to support such an appeal.

The insured received no-fault payments, then received a settlement after filing suit against the negligent party. The insured thereupon filed a “Petition for Equitable Distribution,” and served the petition on her no-fault insurance carrier together with a notice of hearing for the trial judge’s motion calendar. The insured and the carrier appeared at the time and place specified. There was no objection of any kind by the carrier to the procedure employed.¹ The petition set out facts which, if proved, would have supported the discretion of the trial judge to make an award in the amount represented by the order appealed.² The insurance company offered no evidence of any kind and, therefore, the cause was submitted upon the oral argument presented. The order appealed was entered and this appeal followed.

The burden of the carrier’s argument here is that the trial court departed from the guide lines set forth in State Farm Automobile Insurance Co. v. Hauser, Fla.App.1973, 281 So.2d 563, and Hartford Accident & Indemnity Co. v. Diaz, Fla. App.1974, 296 So.2d 504. We are unable to determine that question upon the record before us. The carrier argues that it is the duty of the moving party in the trial court to make a record that will justify the equitable distribution. See Liberty Mutual Insurance Company v. Guillet, Fla.App. 1974, 294 So.2d 1. This is true. Nevertheless, when we are presented with a record showing a petition alleging facts sufficient to support the discretion of trial judge in making the award and showing no objection to the procedure employed and revealing no effort by the party subsequently appealing the award to object or offer any evidence, then we hold that the dissatisfied party is estopped to object on appeal to the procedure employed. See Marsh v. Sarasota County, Fla.App.1957, 97 So.2d 312, and Paul v. Ranter, Fla. App.1963, 155 So.2d 402.

Affirmed.

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Bluebook (online)

322 So. 2d 618, 1975 Fla. App. LEXIS 18823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-farm-mutual-automobile-insurance-v-benton-fladistctapp-1975.

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