11 Fla. L. Weekly Supp. 796c
Insurance — Automobile — Summary judgment — Deposition filed prior to entry of partial summary judgment created genuine issue of material fact as to whether there was a material misrepresentation on insurance application, considering frequency of use of vehicle — Error to grant motion for partial summary judgment
SOUTHERN GROUP INDEMNITY, Plaintiff, vs. NORMAN WILLIAMS, Defendant. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 03-10042 (11). L.C. Case No. 98-6598 (53). June 10, 2004. Barry E. Goldstein, Judge. Counsel: Carlos Rodriguez, Ft. Lauderdale. Cris Boyar, Hollywood.
OPINION
Appellant seeks review of an Order granting a motion for partial summary judgment entered by the trial court. The determinative issue on appeal is whether the trial court committed reversible error in failing to review the deposition of Nelson Williams, that had been timely filed in the court file.
This Court has reviewed the briefs of the parties and the record on appeal and finds that C.M. Whitney Co., Inc. v. Mid-State Prestressed Concrete Co., 140 So. 2d 641 (Fla. 3d DCA 1962), a factually similar case, controls this issue. In C.M. Whitney Co., Inc., the Third District Court of Appeal construed Rule 1.36(c), Fla. R. Civ. P., which is substantially the same as current Rule 1.510(c), Fla. R. Civ. P. Rule 1.510(c) now states, in pertinent part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The court in C.M. Whitney Co., Inc., reversed a summary judgment that had been entered without considering a deposition that had been filed, stating that: “the procedure set forth in this rule contemplates an examination of all pleadings, affidavits, depositions and admissions on file with a view toward determining whether there is present in a given case a genuine issue of material fact.”
After examining the record in that case, including the filed deposition, the Third District Court of Appeal concluded that there were genuine issues of fact which should have been submitted to a jury. Similarly, this Court has examined the record, including the deposition of Norman Williams, which was filed prior to the entry of the summary judgment, and finds that the deposition creates a genuine issue of material fact as to whether there was a material misrepresentation on the insurance application, considering the frequency of Norman Williams’ use of the vehicle.
Accordingly, the court erred in granting the motion for partial summary judgment. The Order under review is REVERSED and the cause is REMANDED for further proceedings not inconsistent herewith.
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