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February 17, 2017 by admin

Insurance — Automobile liability — Coverage — Trial court erred in determining that there was coverage by operation of estoppel where insured failed to prove prejudice

 

42
Fla. L. Weekly D351c
Top of Form

Insurance
— Automobile liability — Coverage — Trial court erred in determining that
there was coverage by operation of estoppel where insured failed to prove
prejudice

PROGRESSIVE
EXPRESS INSURANCE COMPANY, Appellant/Cross-Appellee, v. ANZUALDA BROTHERS,
INC., a Florida Corporation, JESUS E. MARINO CASTILLO, individually and as an
employee of Anzualda Brothers, Appellees/Cross-Appellees. 1st District. Case
No. 1D15-4700. Opinion filed February 10, 2017. An appeal from the Circuit
Court for Levy County. Stanley H. Griffis, III, Judge. Counsel: Scott A. Cole,
Cole Scott & Kissane, P.A., Miami; Joseph T. Kissane, Steven L. Worley,
Cole, Scott & Kissane, P.A., Jacksonville, for Appellant/Cross-Appellee.
Lincoln J. Connolly, Trials & Appeals, P.A., Miami, for
Appellee/Cross-Appellant, Anzualda Brothers, Inc.

(WOLF,
J.) Appellant, Progressive Express Insurance Company, challenges the trial
court’s entry of a declaratory judgment determining that there was insurance
coverage in favor of appellee Anzualda Brothers, Inc. by operation of estoppel.
Appellant argues it should not have to provide coverage for appellee’s
accident, which resulted in the fatality of one victim and the injury of
another victim, because the vehicle appellee had been driving was not a listed
vehicle on the insurance policy, and because appellee failed to prove all three
elements of its coverage by estoppel claim.

Appellee
cross-appeals, alleging the trial court erred in its refusal to enforce a
settlement agreement and consent judgment that were agreed to by appellant and
entered in the separate, underlying tort case between appellee and the victims.

We
agree with appellant that appellee failed to prove all three elements of its
coverage by estoppel claim. In an insurance coverage by estoppel claim, the
plaintiff must prove (1) the defendant company made a representation of
material fact; (2) the plaintiff reasonably relied on that representation of
material fact; and (3) the plaintiff was prejudiced by its reliance. Bishop
v. Progressive Express Ins. Co.
, 154 So. 3d 467, 468 (Fla. 1st DCA 2015).
Because appellee failed to sufficiently prove prejudice, we reverse, vacate the
trial court’s final judgment in favor of appellee, and remand for the trial
court to enter final judgment in favor of appellant.

Because
we remand for the trial court to enter final judgment in favor of appellant,
appellee’s cross-appeal requesting damages from appellant in the amount
outlined in the settlement agreement is moot. (MAKAR and WINSOR, JJ., CONCUR.)

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