3 Fla. L. Weekly Supp. 669b
Civil procedure — Stipulation signed by counsel retained by insurer is not sufficient as matter of law to prove consent or ratification of settlement by insured — Error to enter judgment against insured, individually, for settlement amount after insurer was placed in receivership and settlement check issued by insurer was returned unpaid where nothing in the record established consent or ratification by insured
PROSERV, INC., a Fla. Corp., and JOSEPH J. DURANTE and VIRGINIA D. DURANTE, His Wife, Appellant/Petitioner, v. ESTHER PEREZ, Appellee/Respondent. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 94-267AP. Lower Court Case No. 92-03466 CC05. Opinion filed March 8, 1996. An Appeal from the County Court for Dade County, Florida, Harvey L. Goldstein, Judge. Counsel: Richard B. Adams, Jr., for Appellant. Rosa M. Vega, for Appellee.
(Before AMY STEELE DONNER, STEVEN D. ROBINSON and JENNIFER D. BAILEY, JJ.)
(JENNIFER D. BAILEY, J.) This appeal came before this court because of incidents occurring subsequent to an Order of Dismissal entered by the lower court based upon a Stipulation and Motion for Dismissal executed by counsel for Appellee Esther Perez (Plaintiff below) and counsel for the insurer of Appellant Proserv, Inc. (Defendant below). Pursuant to the settlement agreement, a check was issued by Indemnity Underwriters Insurance Company, the insurer of Proserv., Inc. Within days after the check was issued, the insurer was placed into receivership by an Oklahoma court, and the check was returned unpaid. The trial court vacated the Order of Dismissal and reinstated the cause. Plaintiff Perez then filed a motion to enforce the terms of the agreement. The lower court granted the Plaintiff’s motion and entered judgment against Proserv., Inc., individually for the settlement amount of $6,250. Following the denial of Defendant’s Motion for Rehearing, Proserv brings this appeal. We reverse.
Appellant Proserv alleges on appeal that the settlement was an agreement between Indemnity Underwriters Insurance Company and Appellee Perez. Appellant claims that the agreement was not authorized nor ratified by Proserv, that Proserv was not told of the agreement until after negotiations were completed, and that Proserv would not have agreed to be individually liable for the sum of $6250.
Because there is no transcript, there is a presumption of correctness of the lower court’s findings. However, appellate review is not precluded where the documents in the record are sufficient to show fundamental error in the trial court ruling. Ahmed v. Travelers Indemnity Co., 516 So. 2d 40 (Fla. 3d DCA 1987); Giltex Corp. v. Diehl, 583 So. 2d 734 (Fla. 1st DCA 1991).
The Stipulation was signed by counsel for Perez and counsel retained by Appellant’s insurer. The settlement check was issued by the insurer. We find nothing in the record establishing that Proserv consented or ratified the agreement.
The burden of establishing assent to a settlement rests on the party seeking judgment on that settlement. An insured cannot be bound unless there is proof that the insured consented to or knew of the settlement negotiations and subsequently ratified it. Galligan v. Burgess, 423 So. 2d 1037 (Fla. 4th DCA 1982); Palm Beach Royal Hotel, Inc. v. Breese, 154 So. 2d 698 (Fla. 2d DCA 1963).
We find that a stipulation signed by counsel retained by an insurer is not sufficient as a matter of law to prove consent or ratification of a settlement agreement. The trial judge was correct in vacating the Order of Dismissal but erred in finding that the stipulation signed by counsel was sufficient to show consent or ratification by the insured.
REVERSED and REMANDED. (AMY STEELE DONNER and STEVEN D. ROBINSON, JJ., concur.)
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