IRENE MAE KADAR, APPELLANT,
v.
IOWA NATIONAL MUTUAL INSURANCE COMPANY, APPELLEE
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A trial court errs in denying a timely motion for leave to amend a complaint after summary judgment when the plaintiff has already alleged in prior pleadings that the insurer failed to offer uninsured motorist coverage equal to her liability limits.
[1] When a plaintiff has alleged in prior pleadings that an insurer failed to offer uninsured motorist coverage equal to the insured's liability limits, a trial court abuses…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A motion for rehearing and for leave to amend after entry of an adverse summary judgment, though permissible under the rules, is at best a precarious practice.”
The court acknowledged the general principle that amending after summary judgment is unusual but noted that the circumstances here warranted an exception.
Appellant sued her automobile insurer for uninsured motorist coverage benefits of $50,000 (her liability limit), but the policy provided only $15,000 …
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ROBERT P. SMITH, Jr., Judge.
Appellant sued her automobile insurer for uninsured motorist coverage benefits of $50,000, the limit of appellant’s liability coverage. The insurer answered that appellant’s uninsured motorist benefits were $15,000 only, as shown by the policy. Appellant filed a purported reply saying she wasn’t given an opportunity to purchase uninsured motorist coverage equal to her liability coverage. After summary judg ment was entered for the insurer, there being no doubt that the policy was written for only $15,000 of uninsured motorist benefits, appellant timely sought rehearing, Fla.R.Civ.P. 1.530, and an opportunity to amend her complaint, Fla.R.Civ.P. 1.190, to seek reformation of the policy for the insurer’s asserted failure to offer uninsured motorist coverage equal to appellant’s liability limits. That relief was denied.
A motion for rehearing and for leave to amend after entry of an adverse summary judgment, though permissible under the rules, is at best a precarious practice. Roberts v. Braynon, 90 So. 2d 623 (Fla.1956); Inman v. The Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977). Yet considering the limitations on summary judgments and this plaintiff’s prior allegations in the purported reply to the insurer’s answer, the timely motion for leave to amend should have been granted. If on remand plaintiff amends and ultimately prevails, no award on account of attorney’s fees will be made for this appeal.
REVERSED.
SHIVERS, J., concurs.*
MILLS, J., dissents.*
MILLS, Judge,
dissenting:
I dissent. I would affirm. The trial court did not err in refusing to allow Kadar to amend after summary judgment because this belated attempt would inject new issues into the case. This should not be permitted. Daytona Beach Racing and Recreational Facilities District v. Volusia County, 355 So. 2d 175 (Fla. 1st DCA 1978), and United Telephone Co. v. Mayo, 345 So. 2d 648 (Fla.1977).
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DiPAOLO v. Rollins Leasing Corp., 700 So. 2d 31 (Fla. 5th DCA 1997)…; Key Bank of Florida v. First United Land Title Co., 502 So. 2d 1280 (Fla. 2d DCA 1987); Cudlipp v. Blue Chip Laundry, Inc., 476 So. 2d 783 (Fla. 4th DCA 1985); Woodham v. Moore, 428 So. 2d 280 (Fla. 4th DCA 1983); Kadar v. Iowa Nat. Mut. Ins. Co., 374 So. 2d 1075 (Fla. 5th DCA 1979); First National Bank of Tampa v. Pappas, 372 So. 2d 989 (Fla. 2d DCA 1979); Inman v. The Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977), and cases cited therein. . The Florida Rules of Appellate Procedure were am…
Authorities Cited
- Roberts v. Braynon, 90 So. 2d 623 (Fla. 1956)
- Inman v. The Club ON Sailboat KEY, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977)
- United Tel. Co. of Fla. v. Mayo, 345 So. 2d 648 (Fla. 1977)
- Daytona Beach Racing & Recreational Facilities Dist. & Int'l Speedway Corp. v. Volusia Cnty., 355 So. 2d 175 (Fla. 1st DCA 1978)