Sheikh v. Coregis Ins. Co.

• Decision Date: 08 November 2006
• Docket Number: No. 3D06-768.,3D06-768.
• Citation: 943 So.2d 242
• Parties: Barbra SHEIKH n/k/a Barbra Kramn, Appellant, v. COREGIS INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

943 So.2d 242

Barbra SHEIKH n/k/a Barbra Kramn, Appellant, v. COREGIS INSURANCE COMPANY, Appellee.

No. 3D06-768.

District Court of Appeal of Florida, Third District.

November 8, 2006.

Rehearing Denied December 14, 2006.

Miller Webner and Dale F. Webner, for appellant.

Demahy, Labrador, Drake, Payne & Cabeza and Pete L. Demahy, and Kenneth R. Drake, Miami, for appellee.

Before WELLS, CORTIÑAS, and LAGOA, JJ.

CORTIÑAS, Judge.

Appellant, Barbara Sheikh ("Sheikh"), appeals from an order granting Coregis Insurance Company's ("Coregis") motion for summary judgment. We reverse.

Sheikh retained Gregory Gamble ("Gamble"), a Louisiana attorney, to file suit in federal court in Miami, Florida, for an action based on the death of her husband on the high seas. In 1998, Sheikh's case was dismissed with prejudice due to Gamble's failure to appear at a calendar call and to respond to the court's order to show cause why the case should not be dismissed. Suffering from a drug addiction, Gamble ignored his legal practice and was either in jail or rehabilitation programs from 1998 to 2000.

In March 1999, Sheikh filed a legal malpractice action against Gamble and his law firm in Miami-Dade Circuit Court. Gamble did not respond to the summons and complaint. As a result, in September 2003, the circuit court entered a default judgment in Sheikh's favor in the amount of $2,173,623. The judgment remains unsatisfied.

Gamble and his law firm were insured under a malpractice insurance policy issued to them in Louisiana by the appellee, Coregis. The insurance policy provided coverage for $1,000,000 from October 1997 to October 1998. However, in January 1998, the policy had been purportedly, but defectively, cancelled by Coregis.¹ Therefore, for purposes of this motion, Coregis stipulated that the policy should be deemed "effective" at the time of the malpractice incident.

In his deposition, Gamble admitted that he did not provide Coregis with notice of the lawsuit or the default judgment. Gamble also testified that he failed to provide Coregis with notice because he "assumed" that his policy had been cancelled, since he did not pay the premiums for some time. Gamble stated that, because of his drug addiction, he could not recall whether he received a "notice of cancellation" from Coregis in 1998.

In August 1999, five months after Sheikh filed suit, Sheikh's counsel sent Gamble's former secretary, Carole Nungesser ("Nungesser"), a letter seeking information regarding the existence, if any, of malpractice insurance. Nungesser, in her affidavit, admitted that she contacted Sheikh's counsel and advised him that whatever malpractice insurance existed was cancelled in June 1998. Notably, Nungesser stated in her affidavit that she believed the policy had been cancelled because an employee from Gilsbar, Inc. ("Gilsbar"), the local insurance agent that issued the malpractice insurance policy to Gamble, advised her that the policy had been cancelled.

After receiving this information, Sheikh's counsel submitted a letter to Gilsbar seeking information concerning the existence of any potential malpractice insurance coverage for Gamble. Gilsbar responded by stating that it was their policy not to divulge the requested information. Moreover, Gilsbar did not inform Sheikh's counsel that it was the agent for Coregis that was involved in the issuance of the policy. After refusing to disclose the existence of malpractice coverage, Gilsbar issued a letter to Coregis reporting the potential claim. Coregis did not respond to Gilsbar's notice of a potential claim nor contact Gamble's firm.

In September 2004, Sheikh filed an action against Coregis to enforce the default judgment. In response, Coregis filed a motion for summary judgment, which was granted by the trial court. The trial court stated in its order granting summary judgment, that it was uncontested that Coregis did not receive notice of a claim prior to the filing of this action. The court found that the insurance agent from Gilsbar advised Sheikh's counsel that Coregis was the insurance carrier for Gamble, and that Sheikh chose not to notify Coregis regarding the claim. Additionally, the trial court found Coregis was relieved of any further liability under the policy because it was undisputed that Gamble did not rely on the purported cancellation of the policy in failing to forward notice of the suit to Coregis. Sheikh's appeal follows.

We review orders granting summary judgment de novo. Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000). Summary judgment is appropriate only if, after consideration of the pleadings, depositions, answers, and affidavits, it is shown that there is no genuine issue of material fact. Id. Furthermore, in ruling on a motion for summary judgment, the court may not adjudge the credibility of the witnesses or weigh the evidence. Id. at 525 (citing Hernandez v. United Auto. Ins. Co., 730 So.2d 344, 345-46 (Fla. 3d DCA 1999)). All doubts and inferences must be resolved in favor of the non-moving party, and if the "slightest doubt" exists, then summary judgment is not available. Id. (quoting Hancock v. Dept. of Corr., 585 So.2d 1068, 1070 (Fla. 1st DCA 1991)).

In the instant case, we find that the trial court was correct in determining that the lack of notice of the underlying suit is undisputed. However, after viewing the record in the light...