Hernandez v. United Auto. Ins. Co., Inc., 98-774.

• Citation: 730 So.2d 344
• Decision Date: 10 March 1999
• Docket Number: No. 98-774.,98-774.
• Parties: Orlando D. HERNANDEZ and Miguelina Hernandez, Appellants, v. UNITED AUTOMOBILE INSURANCE COMPANY, INC., Appellee.
• Court: Court of Appeal of Florida (US)

730 So.2d 344

Orlando D. HERNANDEZ and Miguelina Hernandez, Appellants, v. UNITED AUTOMOBILE INSURANCE COMPANY, INC., Appellee.

No. 98-774.

District Court of Appeal of Florida, Third District.

March 10, 1999.

Merritt, Sikes & Leach, Miami, for appellant.

Arthur J. Morburger, Miami, for appellee.

Before LEVY, GREEN, and SHEVIN, JJ.

PER CURIAM.

This is an appeal from a final summary judgment in a declaratory action finding no insurance coverage for the loss of the appellant's leased vehicle. We reverse.

The appellants, Orlando D. Hernandez and his wife, Miguelina, were named insureds under an automobile insurance policy issued by the appellee, United Automobile Insurance Company ("insurer"). The policy provided collision coverage which extended to driver(s) who operated the vehicle with the express permission of the named insureds and who did not permanently reside in their household.¹ While this policy was in full force and effect, the Hernandez's leased vehicle was involved in a serious collision with another vehicle resulting in severe injuries to the driver of the other vehicle. The driver of the Hernandezes' vehicle immediately fled the scene and was otherwise unidentifiable by anyone present.

When the insurer declined coverage and denied a duty to defend,² the Hernandezes filed this declaratory action asserting, among other things, that at the time of the accident, they had lent their vehicle to their neighbor, Johnny Torres. Accordingly, they maintained that because this vehicle was being operated by someone with their express permission, the insurer had an obligation to defend and indemnify them under the policy. The insurer filed a motion for final summary judgment based upon Mr. Torres' sworn denial of being the driver of the appellants' vehicle at the time of the accident and the Hernandezes' inability to otherwise refute Mr. Torres' sworn testimony. The trial court granted this motion. We conclude, without reaching other related issues raised, that this was error.

A movant for a summary judgment must conclusively establish the nonexistence of genuine issues of material fact. See Moore v. Morris, 475 So.2d 666, 668 (Fla. 1985). In ruling on a motion for summary judgment, it is well-established that the court may neither adjudge the credibility of the witnesses nor weigh the evidence. See Pita v. State Street Bank and Trust Co., 666 So.2d 268, 268 (Fla. 3d DCA 1996) (holding that "[o]n a motion for summary judgment, it is settled that a trial court is not permitted to weigh material conflicting evidence or pass upon the credibility of the witnesses."); Juno Indus., Inc. v. Heery Int'l, 646 So.2d 818, 822 (Fla. 5th DCA 1994) (stating that "[t]he trial court may not determine factual issues nor consider either the weight of the conflicting evidence or the credibility of witnesses in determining whether a genuine issue of material fact exists in a summary judgment proceeding."); Shapiro v. Barron, 538 So.2d 1319, 1320 (Fla. 4th DCA 1989) (reasoning that "[j]udging the credibility of witnesses or weighing the evidence are not proper subjects of a motion for summary judgment."); Kuczkir v. Martell, 480 So.2d 700, 701 (Fla. 4th DCA 1985) (stating that "[w]here the issue of credibility is present, summary judgment is inappropriate."); State Farm Mut. Auto. Ins. Co. v. Gant, 460 So.2d 912, 913 (Fla. 2d DCA 1984) (holding that "[i]t goes without saying that a trial judge may not, on motion for summary judgment, make evidentiary determinations involving the credibility of witnesses."); Strickland v. Strickland, 456 So.2d 583, 584 (Fla. 2d DCA 1984) (reasoning that "[a] trial judge may not, on a motion for summary judgment,...