06-0207 MCKINNEY V. FORTUNE INS.

State: Florida

Court: Florida Third District Court

Docket No: 06-0207 MCKINNEY V. FORTUNE INS.

Case Date: 12/20/2006

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. 2006

PATRICIA MCKINNEY, as next best friend and natural guardian of JARO S. HLADIK, a minor, and PATRICIA MCKINNEY, personally, Appellants,

** ** ** ** CASE NO. 3D06-207

vs. ** FORTUNE INSURANCE COMPANY, a Florida corporation, and BOB'S BARRICADES, INC., a Florida corporation, Appellees. ** ** ** LOWER TRIBUNAL NO. 00-18471

Opinion filed December 20, 2006. An Appeal from the Circuit Court for Miami-Dade County, Herbert Stettin, Judge. Metsch & Metsch and Lawrence R. Metsch; Arthur W. Tifford, for appellants. Lane, Reese, Aulick, Summers & Ennis and William S. Reese and John J. Cavo, for appellee. Before RAMIREZ, and LAGOA, JJ., and SCHWARTZ, Senior Judge. PER CURIAM.

Patricia McKinney, etc., et al., appeal an adverse final judgment entered in favor of appellee Fortune Insurance Company. We affirm, finding that there are no genuine issues of material fact and that section 319.30, Florida Statutes (2004), is

inapplicable where, as here, the vehicle is not a "total loss" as defined in that section. Section 319.30 defines a vehicle which constitutes a "total loss" as one when there is an agreement between the insurance company and the vehicle owner to replace the vehicle with one of like kind and quality. The record in this case shows that no

such agreement existed between McKinney, the vehicle's owner, and Fortune. Thus, as a matter of law, section 319.30 does not

apply because the vehicle was not a total loss as defined in the statute. We find no merit to the remaining arguments McKinney raised in this appeal, and do not find that there are any genuine issues of material fact so as to preclude the entry of final judgment in Fortune's favor. Affirmed.

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