Wednesday, August 24, 2011

Rehearing Denied Where Record Insufficient To Support Argument

In Florida Insurance Guaranty Association v. Messina (4D09-4448), the Fourth District denied rehearing of THIS short opinion. In the opinion the court distinguished Florida Insurance Guaranty Ass’n. v. Smothers, 36 Fla. L. Weekly D1217 (Fla. 4th DCA June 8, 2011) and Florida Insurance Guaranty Ass’n. v. Ehrlich, 36 Fla. L. Weekly D939 (Fla. 4th DCA May 4, 2011) as follows:
In Smothers, FIGA filed a demand for an appraisal, not an answer and affirmative defenses. In Ehrlich, the court compelled an answer and affirmative defenses, when FIGA sought additional extensions.
The court also noted that "While FIGA has argued that it did not really contest coverage, there is no record to reflect that." The court continued:
Without showing the circumstances of the settlement and whether there was a real contest to the claim, FIGA has not provided an appellate record sufficient for this court to consider its contentions that it did not deny coverage by affirmative action other than delay. See Applegate v. Barnett Bank, 377 So. 2d 1150 (Fla. 1979). 
The Applegate opinion was also cited in the original opinion which stated, in its entirety:
Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979).


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