BILL FRISBIE, YANKEE TRAILER COURT, LLC, ET AL, APPELLANT,
v.
CAROLINA CASUALTY INSURANCE COMPANY, ET AL., APPELLEE
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A law firm client who sued for malpractice and intervened in a declaratory judgment action between the firm and its insurer appeals summary judgment allowing rescission of the insurance policy for material misrepresentations. The court reversed and remanded because genuine issues of fact existed regarding whether waiver or estoppel barred rescission, given the insurer's delay in asserting rescission and its interim actions defending the firm.
The court reversed the summary judgment on the waiver and estoppel issue and remanded for further proceedings because genuine issues of fact existed for a jury to decide whether the insurer waived or was estopped from asserting rescission based on its delay in asserting the defense and its interim actions. The court affirmed summary judgment on all other issues.
[1] Genuine issues of fact regarding waiver or estoppel can preclude an insurer's rescission of a policy for material misrepresentations.
[2] An insurer's actions taken after becoming aware of facts justifying rescission, but before asserting rescission, may constitute waiver or estoppel.
Previewing 2 of 4 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“record evidence exists from which a jury could conclude that shortly after the client sued the firm in February 2006, the insurer was made aware of the facts it now claims justify rescission, but it did not assert rescission until November 2007. In the interim, the insurer defended the firm, settled another claim on the policy, and took other actions that were inconsistent with rescission (waiver) and upon which the firm relied to its detriment (estoppel).”
Establishes the factual basis for finding genuine issues of material fact regarding waiver and estoppel that preclude summary judgment
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Join FLexlaw to unlock all legal intelligenceA client sued his law firm for malpractice in February 2006. The firm's insurer was made aware of facts shortly after this suit that the insurer later…
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A client who sued his law firm for malpractice and then intervened in a declaratory judgment action between the firm and its insurer appeals from a final summary judgment allowing the insurer to rescind the insurance policy for material misrepresentations on the policy renewal application. The client argues that summary judgment was improper because: (i) genuine issues of fact existed on the elements of misrepresentation and materiality; (ii) genuine issues of fact existed as to whether the doctrines of waiver or estop-pel precluded rescission; and (iii) certain policy provisions precluded rescission. We reverse and remand for further proceedings because genuine issues of fact existed as to whether waiver or estoppel barred rescission. Specifically, record evidence exists from which a jury could conclude that shortly after the client sued the firm in February 2006, the insurer was made aware of the facts it now claims justify rescission, but it did not assert rescission until November 2007. In the interim, the insurer defended the firm, settled another claim on the policy, and took other actions that were inconsistent with rescission (waiver)1 and upon which the firm relied to its detriment (estoppel).2 We affirm as *1013to all other issues decided on summary judgment.
AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.
PALMER, LAWSON and JACOBUS, JJ., concur.
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Citator
Cited By
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Frisbie v. Carolina Cas. Ins. Co., 162 So. 3d 1079 (Fla. 5th DCA 2015)…merit. This court previously reversed the trial court’s first grant of summary judgment in favor of Appellee after finding that “genuine issues of fact existed as to whether waiver or estoppel barred rescission.” Frisbie v. Carolina Cas. Ins. Co., 103 So. 3d 1011, 1012 (Fla. 5th DCA 2012). After remand, Appellee filed a second motion for summary judgment, arguing that the material misrepresentations of Appellants’ law firm — in whose shoes Appellants stand for purposes of this case — constituted unclean hand…
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The Nw. Mut. Life Ins. Co. v. Cross (M.D. Fla. 2025)…f estoppel and waiver in the insurance contract setting.” LeMaster v. USAA Life Ins. Co., 922 F. Supp. 581, 585 (M.D. Fla. 1996). Waiver is a defense to rescission of a Policy based on a material misrepresentation. Frisbie v. Carolina Cas. Ins. Co., 103 So. 3d 1011, 1013 n.1 (Fla. 5th DCA 2012) (collecting cases). “An insurer can waive its right of recission under Florida law if the following elements are met: ---PAGE 11--- `(1) the existence at the time of the waiver of a right, privilege, advantage,…1 / 2
Authorities Cited
- Crown Life Ins. Co. v. McBRIDE, 517 So. 2d 660 (Fla. 1987)
- SIX L'S Packing Co., Inc. v. Fla. Farm Bureau Mut. Ins. Co., 268 So. 2d 560 (Fla. 4th DCA 1972)
- Johnson v. Life Ins. Co. of Ga., 52 So. 2d 813 (Fla. 1951)
- SIX L'S Packing Co., Inc. v. Fla. Farm Bureau Mut. Ins. Co., 276 So. 2d 37 (Fla. 1973)
- Carlo Leonardo v. State Farm Fire & Cas. Co., 675 So. 2d 176 (Fla. 4th DCA 1996)
- Graham v. Lloyd's Underwriters AT London, 964 So. 2d 269 (Fla. 2d DCA 2007)
- Gurrentz v. Fed. Kemper Life Assurance Co., 513 So. 2d 241 (Fla. 4th DCA 1987)
- Wimberg v. Chandler, 986 F. Supp. 1447 (M.D. Fla. 1997)