38 Fla. L. Weekly D49d
103 So. 3d 1011
Insurance — Rescission — Misrepresentations on application — Error to enter final summary judgment allowing insurer to rescind policy for material misrepresentations on policy renewal application where there were genuine issues of material fact as to whether waiver or estoppel barred rescission, given evidence from which jury could conclude that shortly after insured law firm was sued for malpractice in early 2006, the insurer was made aware of the facts it now claims justify rescission, but insurer did not assert rescission until late 2007, and during interim, insurer defended firm, settled another claim on the policy, and took other actions that were inconsistent with rescission upon which the insured firm relied to its detriment
BILL FRISBIE, YANKEE TRAILER COURT, LLC, ET AL, Appellant, v. CAROLINA CASUALTY INSURANCE COMPANY, ET AL., Appellee. 5th District. Case No. 5D11-1883. Opinion filed December 21, 2012. Appeal from the Circuit Court for Orange County, Thomas B. Smith, Judge. Counsel: Phillips P. O’Shaughnessy, of Phillips P. O’Shaughnessy, P.A., Fort Lauderdale, for Appellants. Beth Ann Berger Zerman, pro hac vice, of Lewis, Brisbois, Bisgaard & Smith, LLP, Chicago, Illinois and Candy L. Messersmith, of Rumberger, Kirk & Caldwell, Orlando, for Appellees.
(PER CURIAM.) 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 estoppel 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 to 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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1Contrary to Carolina’s assertions, waiver is a defense to rescission of an insurance policy for material misrepresentation. See, e.g., Johnson v. Life Ins. Co. of Ga., 52 So. 2d 813, 815 (Fla. 1951); Graham v. Lloyd’s Underwriters at London, 964 So. 2d 269, 276 (Fla. 2d DCA 2007); Leonardo v. State Farm Fire and Cas. Co., 675 So. 2d 176, 178 (Fla. 4th DCA 1996); Gurrentz v. Fed. Kemper Life Ins. Co., 513 So. 2d 241, Fla. 4th DCA 1987); Wimberg v. Chandler, 986 F.Supp. 1447, 1455 (M.D. Fla. 1997). Generally, waiver is a question of fact for the jury. Leonardo, 675 So. 2d at 178.
2“The general rule in applying equitable estoppel to insurance contracts provides that estoppel may be used defensively to prevent a forfeiture of insurance coverage, but not affirmatively to create or extend coverage.” 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, 563 (Fla. 4th DCA 1972) opinion adopted, 276 So. 2d 37 (Fla. 1973) (“In other words, while an insurer may be estopped by its conduct from seeking a Forfeiture of a policy, the insurer’s Coverage or restrictions on the Coverage cannot be extended by the doctrine of waiver and estoppel.”).
