13 Fla. L. Weekly Supp. 550a
Insurance — Personal injury protection — Rescission — Failure to return premium — Error to grant summary judgment on insurer’s affirmative defense of rescission, finding rescission ineffective for failure to return premium, where insured did not file reply alleging failure to return premium
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. FELIX PONCE, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-072 AP. L.T. Case No. 2002008499 SP 25. March 7, 2006. An Appeal from the County Court of Miami-Dade County, Mark King Leban, Judge. Counsel: Michael J. Neimand, for Appellant. Christian Carrazana, for Appellee.
(Before JON I. GORDON, MARIA M. KORVICK, JOSEPH P. FARINA, JJ.)
(PER CURIAM.) Defendant below, United Automobile Insurance Company, appeals an order of the trial court granting Plaintiff, Felix Ponce’s, Motion for Summary Judgment. The Court, having read the memoranda and considered the oral arguments, is fully advised in the premises and makes the following conclusions of fact and law:
Summary judgment is inappropriate on issues not framed in the pleadings. Reina v. Gingerale Corp., 472 So. 2d 530 (Fla. 3d DCA 1985). Here, the trial court granted summary judgment based upon Defendant’s failure to return the premium. However, if Plaintiff sought to avoid Defendant’s affirmative defense of rescission as ineffective for failure to return the premium, Plaintiff should have filed a reply containing the avoidance, if legally sufficient. Fla.R.Civ.P. 1.100(a); Moore Meats, Inc. v. Strawn In and For Seminole County, 313 So. 2d 660 (Fla. 1975). The interest of justice will be best served by allowing the Plaintiff to seek leave to amend its pleadings to properly assert any replies to Defendant’s affirmative defenses, if legally sufficient. National Ben Franklin Life Ins. Corp. v. Cohen, 414 So. 2d 552 (Fla. 4th DCA 1982).
Accordingly, it is hereby ORDERED and ADJUDGED that the order granting summary judgment and the subsequent final judgment awarding attorney’s fees must be REVERSED and REMANDED for further proceedings consistent with this opinion.
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