The Hartford v. Munson

District Court of Appeal of Florida

The Hartford v. Munson

533 So. 2d 318, 13 Fla. L. Weekly 2478, 1988 Fla. App. LEXIS 4919, 1988 WL 118078

CourtDistrict Court of Appeal of Florida

DecidedNovember 10, 1988

DocketNo. 88-144

StatusPublished

This text of 533 So. 2d 318 (The Hartford v. Munson) 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

The Hartford v. Munson, 533 So. 2d 318, 13 Fla. L. Weekly 2478, 1988 Fla. App. LEXIS 4919, 1988 WL 118078 (Fla. Ct. App. 1988).

Pincite

Opinions

COWART, Judge.

The summary judgment in this case is based on a judicial determination that the [319]*319participation of an insurer’s attorney in an arbitration proceeding with knowledge that the insured had settled a claim against a third party constituted an implied waiver by the insurer of a policy provision that the insured would not, without the insurer’s consent, settle such a claim and thereby destroy the insurer’s subrogation rights.

We reverse the summary judgment because the evidence before the trial court at the summary judgment hearing as to what the insurer’s attorney knew about the insured’s unconsented settlement and when the insurer’s counsel learned it, was unclear and in dispute. These factual questions should be resolved by a trier of fact, as should also be the ultimate question of whether the facts, as finally established by the preponderance of the evidence, reasonably infer and imply that by commencing, or continuing, to participate in the arbitration proceeding, the insurer intended to waive the policy provision in question. Whether its existence is expressed and explicit, or subject to implication from circumstantial evidence, a waiver is an intentional relinquishment of a known right.

The summary judgment is reversed and the cause remanded for further proceedings.

REVERSED.

SHARP, C.J., concurs. COBB, J., dissents with opinion.

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COWART, Judge.

The summary judgment in this case is based on a judicial determination that the [319]*319participation of an insurer’s attorney in an arbitration proceeding with knowledge that the insured had settled a claim against a third party constituted an implied waiver by the insurer of a policy provision that the insured would not, without the insurer’s consent, settle such a claim and thereby destroy the insurer’s subrogation rights.

We reverse the summary judgment because the evidence before the trial court at the summary judgment hearing as to what the insurer’s attorney knew about the insured’s unconsented settlement and when the insurer’s counsel learned it, was unclear and in dispute. These factual questions should be resolved by a trier of fact, as should also be the ultimate question of whether the facts, as finally established by the preponderance of the evidence, reasonably infer and imply that by commencing, or continuing, to participate in the arbitration proceeding, the insurer intended to waive the policy provision in question. Whether its existence is expressed and explicit, or subject to implication from circumstantial evidence, a waiver is an intentional relinquishment of a known right.

The summary judgment is reversed and the cause remanded for further proceedings.

REVERSED.

SHARP, C.J., concurs. COBB, J., dissents with opinion.

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Bluebook (online)

533 So. 2d 318, 13 Fla. L. Weekly 2478, 1988 Fla. App. LEXIS 4919, 1988 WL 118078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-hartford-v-munson-fladistctapp-1988.