5 Fla. L. Weekly Supp. 212b
Insurance — Automobile — Personal injury protection — Error to grant summary judgment in favor of insurer on ground that vehicle involved in accident was not covered under terms of policy in effect at time of accident — Plaintiff’s affidavit that, prior to accident, he informed authorized agent of insurer of purchase of automobile and was assured that insurance coverage on separate vehicle would be transferred immediately and that no further action need be taken, raised material issue of fact as to whether there was contract of insurance covering vehicle at time of accident
JAMES STRONG, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee. 19th Judicial Circuit in and for St. Lucie County, Appellate Division. Case No. 95-1505-SP-09. L.T. No. 95-1294-CA-25. Decision filed February 21, 1997. Appeal from County Court, Saint Lucie County, Thomas Walsh, Judge. Counsel: Lorenzo Williams and Tony Ramos, Ft. Pierce, for Appellant. Art C. Young, Ft. Pierce, for Appellee.
(KANAREK, J.) Appellant filed a breach of contract against Allstate Insurance Company for failure to pay PIP benefits. Allstate answered denying most of the complaint and raised several affirmative defenses. Allstate then filed a Motion for Summary Judgment based on the position that Strong’s automobile that was involved in the accident was not a covered vehicle under the terms of the insurance policy that was in effect at the time of the accident. To support this position Allstate filed the affidavit of a claims analyst which stated in part that the 1980 Ford LTD which was involved in the accident on July 18, 1994, was not an insured vehicle at the time of the accident. The affidavit went on to state that the automobile involved in the accident was not added to the policy until after the accident. Allstate also filed a copy of the declaration sheet issued on January 21, 1994, which covered the period during which the accident occurred and which showed that Strong’s car was not listed as a covered vehicle. Allstate also relied on a Request for Admissions that was not answered by Strong.
In response Strong filed two separate affidavits. In these affidavits he stated that on September 2, 1993 (before the accident), that he had contacted an authorized agent of Allstate and had advised of the purchase and transfer of ownership of the 1980 Ford LTD which had been involved in the accident. The affidavit went on to state that the agent assured appellant that the “principal insurance coverage on his 1977 Buick LeSaber would be transferred/rolled-over immediately to his 1980 Ford LTD and that no further action was needed to be taken.”
In granting the Motion for Summary Judgment, the trial court announced that it had considered all the items in the record, including Strong’s affidavit. Appellant’s affidavit raises a contested material issue of fact as to whether there was a contract of insurance covering the 1980 Ford LTD at the time of the accident. As such, the granting of Summary Judgment was in error.
We therefore vacate the Order Granting Summary Judgment and remand the case for further proceedings consistent with this opinion. (MAKEMSON, J. and WILD, J., concur.)
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