AETNA CASUALTY & SURETY COMPANY, APPELLANT,
v.
FRANK MEDINA TRADING COMPANY, INC., APPELLEE
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Aetna's summary judgment was reversed because the insurance policy required both proof of loss and ascertainment of loss before the insurer's obligation to pay arose, and no ascertainment had occurred.
An insurer's obligation to pay under an insurance policy arises only upon receipt of proof of loss AND ascertainment of the loss, not upon receipt of proof of loss alone.
[1] An insurer's obligation to pay is not triggered by receipt of proof of loss alone; ascertainment of the loss by written agreement or award is a separate and additional co…
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Join FLexlaw to unlock all legal intelligence“The amount of loss for which this Company may be liable shall be payable sixty days after proof of loss ... is received by this Company and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this Company of an award as herein provided.”
The policy language establishing the conditions for the insurer's payment obligation.
Frank Medina Trading Company submitted a proof of loss to Aetna Casualty & Surety Company. Aetna did not object to the proof of loss, but no written a…
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PER CURIAM.
We reverse the summary judgment in favor of the insured, Frank Medina Trading Company. The basis for the judgment was the trial court’s conclusion that the insurer became liable to pay the insured sixty days after proof of loss was received by the insurer. This conclusion was in error, however, since the policy itself provided that “[t]he amount of loss for which this Company may be liable shall be payable sixty days after proof of loss ... is received by this Company and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this Company of an award as herein provided.” (emphasis supplied).
As the policy plainly states, the insurer’s obligation to pay arises only upon an ascertainment of the loss, in addition to the receipt of a proof of loss. It being undisputed that no ascertainment of the loss was ever made, the company’s obligation to pay was never triggered. We reject the insured’s contention that the company’s failure to object to the proof of loss constitutes an admission of liability obviating the need to ascertain the loss. Crotty v. Union Mutual Life Insurance Co., 144 U.S. 621, 12 S.Ct. 749, 36 L.Ed. 566 (1892); Howell v. John Hancock Mutual Life Insurance Co., 286 N.Y. 179, 36 N.E. 2d 102 (1941). See generally Annot. 49 A.L.R.2d 87, 106 (1956); 17A J. Appleman, Insurance Law and Practice § 9816 (1981); 14 G. Couch, Couch on Insurance 2d § 49B:20 (1982).
Reversed and remanded for further proceedings.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Columbia Cas. Co. v. S. Flapjacks, Inc., 868 F.2d 1217 (11th Cir. 1989)…ly Different Language Because several cases which Columbia cites interpret insurance policies with significantly different terms, such decisions have no application to this case. See, e.g., Aetna Casualty and Surety Co. v. Frank Medina Trading Co., 529 So. 2d 730, 731 (Fla. 5th D.C.A.1988); Underwriters Ins. Co. v. Kirkland, 490 So. 2d 149 (Fla. 1st D.C.A.1986). In Frank Medina, the Florida appellate court held that the insurer had no obligation to pay for the loss until after the insured filed a proof of lo…
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316, Inc. v. Md. Cas. Co., 625 F. Supp. 2d 1187 (N.D. Fla. 2008)…the insurer.” Because the policy conditioned payment and entry of an appraisal award, any accrued interest was deemed to accrue from sixty days after the appraisal award was entered. See also Aetna Cas. & Sur. Co. v. Frank Medina Trading Co., 529 So.2d 730, 731 (Fla. 3rd DCA 1988) (holding the same). It is clear from these decisions that Florida state courts defer to the language of the effective policy in determining timeliness of payments. Under the Building and Personal Property Coverage Form o…
Authorities Cited
- Crotty v. Union Mut. Life Ins. Co., 144 U.S. 621 (U.S. 1892)