04-0746 FL. INSUR. V. SUPER NICE

State: Florida

Court: Florida Third District Court

Docket No: 04-0746 FL. INSUR. V. SUPER NICE

Case Date: 12/29/2004

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2004 FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellant, vs. SUPER NICE CAB, et al., Appellees. ** Opinion filed December 29, 2004. An Appeal from the Circuit Court for Miami-Dade County, Michael Chavies, Judge. Cole, Scott & Kissane and Michael C. Clarke and Betsy E. Gallagher (Tampa), for appellant. Pita & Del Prado and H.K. "Skip" Pita, for appellee. Before GERSTEN, FLETCHER and WELLS, JJ. FLETCHER, Judge. This appeal presents an issue as to whether the Florida Insurance Guaranty Association [FIGA], as the statutory ** ** ** ** ** LOWER TRIBUNAL CASE NO. 02-16824 CASE NO. 3D04-746

successor1 to insolvent insurer Biscayne Insurance Company, is vicariously estopped from denying that Biscayne had the duty to defend and indemnify its insured,2 thus FIGA is obligated by Section 631.57(1)(b), hat and Florida Statutes the (2003)3 in the to put on

Biscayne's

indemnify

insured

underlying

negligence suit.

We answer the question in the negative and

reverse the final judgment. Controlling here is Doe v. Allstate Ins. Co., 653 So. 2d 371, 374 (Fla. 1995) wherein our supreme court held:

"Thus, when the insurer undertakes the defense of a claim on behalf of one claiming to be an insured, we have recognized substantial duties on the part of both the insurer and the insured. If an insurer erroneously begins to carry out these duties, and the insured, as required, relies upon the insurer to the insured's detriment, then the insurer should not be able to deny the coverage which it earlier acknowledged. However, we clearly state that the insured must demonstrate that the insurer's
1

See

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