Bontempo v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 26 August 1992
• Docket Number: No. 91-3565,91-3565
• Citation: 604 So.2d 28
• Parties: Constance Nancy BONTEMPO, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Appellee. 604 So.2d 28, 17 Fla. L. Week. D1985
• Court: Florida District Court of Appeals

Page 28

604 So.2d 28

Constance Nancy BONTEMPO, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign

corporation, Appellee.

No. 91-3565.

604 So.2d 28, 17 Fla. L. Week. D1985

District Court of Appeal of Florida,

Fourth District.

Aug. 26, 1992.

Diane H. Tutt of Diane H. Tutt, P.A., and Walter T. Hink, III, Fort Lauderdale, for appellant.

Robert H. Schwartz of Gunther & Whitaker, P.A., Fort Lauderdale, for appellee.

PER CURIAM.

We agree with appellant that the trial court erred in summarily deciding that the appellant was not entitled to recover against the liability insurance carrier of a defunct corporation against whom the appellant had secured a judgment for personal injuries.

In American Fire Casualty Co., v. Collura, 163 So.2d 784, 794 (Fla.2d DCA), cert. denied, 171 So.2d 389 (Fla.1964), the court held:

As we view it, the rule in Florida is that an insurance company, in order to avoid liability under its policy on the ground that the insured violated the cooperation clause, must show that the lack of cooperation was material and that it was substantially prejudiced in the particular case by such lack of cooperation. America Fire & Casualty Co. v. Vliet, [148 Fla. 568, 4 So.2d 862 (1941) ] supra; American Universal Insurance Co. v. Stotsberry, [116 So.2d 482 (Fla.App.1959) ] supra; and Barnes v. Pennsylvania Threshermen & F. Mutual Ins. Co., [146 So.2d 119 (Fla.App.1962) ] supra. This doctrine is consistent with the rule that failure to give a compensated surety notice of a principal's default as required in the bond does not relieve the surety where the failure resulted in no loss to it. See Maule Industries, Inc. v. Gaines Construction Co., Fla.App.1963, 157 So.2d 835.

(Emphasis in original). This view was approved by the Florida Supreme Court in Ramos v. Northwestern Mut. Ins. Co., 336 So.2d 71, 75 (Fla.1976):

This Court in American Fire and Casualty Co. v. Vliet, supra, emphasized that to constitute the breach of a policy, the lack of cooperation must be material and the insurance company must show that it was substantially prejudiced in the particular case by failure to cooperate. Furthermore, as is stated in Collura, supra, the insurer must show that it has exercised diligence and good faith in bringing about the cooperation of its insured and must show that it has complied in good faith with the terms of the policy.

Not every failure to cooperate will release the insurance company. Only that failure which constitutes a material breach and substantially prejudices the rights of the insurer in defense of the cause will release the insurer of its obligation to pay. The question of whether the failure to cooperate is so substantially prejudicial as to release the insurance company of its obligation is ordinarily a question of fact, but under some circumstances, particularly where the facts are admitted, it may well be a question of law. Cf. Norwich Union Indemnity Co. v. Willis, 124 Fla. 137, 168 So. 418 (193...