12 Fla. L. Weekly Supp. 853a
Insurance — Homeowners — Claim for water loss/damage to condominium unit’s bathroom — Summary judgment — On rehearing, order granting summary judgment finding loss excluded under policy is vacated where trial court failed to rule on ore tenus motion to amend reply and affirmative defenses to assert waiver and estoppel prior to granting summary judgment — Motion to amend granted
ALLSTATE FLORIDIAN INSURANCE COMPANY, Plaintiff, vs. ROBERT COOKLIN, Defendant. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 02-1449 (09). June 7, 2005. Robert Lance Andrews, Judge.
ORDER[Original Opinion at 12 Fla. L. Weekly Supp. 654c]
THIS CAUSE having come before the Court on Defendant’s Motion for Rehearing, and the Court having considered same, and being otherwise duly advised in premises, finds and decides as follows:
On April 16, 2005, this Court granted Plaintiff’s motion for summary judgment, finding that the April 2001 water loss was excluded under the policy. Defendant now moves for rehearing. Defendant asserts that at the hearing on the motion for summary judgment, Defendant had made an ore tenus motion to amend his reply and affirmative defenses to assert waiver and estoppel defenses, which this Court did not rule on prior to granting summary judgment in favor of Plaintiff. Upon a review of the record, it appears that this Court had not ruled on the ore tenus motion to amend and thus, the grant of summary judgment was in error.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion for Rehearing is GRANTED. Upon rehearing, this Court VACATES AND WITHDRAWS its Order of April 16, 2005, granting summary judgment in favor of Plaintiff.
It is further ORDERED AND ADJUDGED that Defendant’s motion to amend his reply and affirmative defenses is GRANTED. Defendant shall have fifteen (15) days from the date of this Order to submit an amended reply and affirmative defenses.
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