25 Fla. L. Weekly D630b
Insurance — Error to enter directed verdict for defendant insurer where jury issues were presented as to whether timely notice was given to carrier and whether, even if not, carrier was prejudiced as result
ANTONIO PEREZ, as Parent, legal guardian and next best friend of ANTHONY PEREZ, a minor, Appellant, vs. PUBLIC SERVICE MUTUAL INSURANCE COMPANY, a foreign corporation, P & C INSURANCE SYSTEMS, INC., a Florida corporation, and PABLO CONDE, Appellees. 3rd District. Case No. 3D99-501. L.T. Case Nos. 93-23719 & 95-9623. Opinion filed March 15, 2000. An Appeal from the Circuit Court for Dade County, Murray Goldman, Judge. Counsel: Friedman & Friedman; Hersch & Talisman and Patrice A. Talisman, for appellant. Wicker, Smith, Tutan, O’Hara, McCoy, Graham & Ford and Shelley H. Leinicke for P & C Insurance Systems, Inc. and Pablo Conde; Peters Robertson DeMahy Parsons Mowers Passaro & Drake and Geralyn M. Passaro, for Public Service Mutual Insurance Company.
(Before SCHWARTZ, C.J., and GREEN and FLETCHER, JJ.)
(PER CURIAM.) Contrary to the ruling of the trial court which directed a verdict for the defendant insurer at the conclusion of all of the evidence, jury issues are presented of whether timely notice was given to the carrier and whether, even if not, the carrier was prejudiced as a result. Tiedtke v. Fidelity & Cas. Co., 222 So. 2d 206 (Fla. 1969); Wolfson v. Insurance Co., 451 So. 2d 1005 (Fla. 3d DCA 1984), pet. for review denied, 458 So. 2d 272 (Fla. 1984).1 Therefore, the judgment below is reversed for jury determination.
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1The trial judge may have based his decision in part upon a supposed breach of the cooperation clause by the insured. On the present record we do not believe that the defendant raised even a jury question on this point. See Ramos v. Northwestern Mut. Ins. Co., 336 So. 2d 71 (Fla. 1976); Tri-State Ins. Co. v. Fitzgerald, 593 So. 2d 1118 (Fla. 3d DCA 1992).
