Opinion
No. 81-175.
October 27, 1981. Rehearing Denied November 25, 1981.
Appeal from the Circuit Court, Dade County, Francis X. Knuck, J.
Paul Morris, Miami, for appellant.
Joseph A. McGowan, Miami, for appellee.
Before DANIEL S. PEARSON and FERGUSON, and JORGENSON, JJ.
We reverse the final judgment for Travelers Insurance Company upon a holding (1) where North American Marketing Corporation, Inc., in a non-jury trial of its third-party claim against Travelers, presented a prima facie case of "unidentifiable employee dishonesty" resulting in loss for which it was insured by Travelers, the trial court erred in granting Travelers' motion for involuntary dismissal at the conclusion of North American's case; and (2) Travelers' unproved claim that the extent of the loss was diminished by other facts was not a matter which was properly considered on Travelers' Rule 1.420(b), Florida Rules of Civil Procedure, motion, such claim being no part of whether North American established a prima facie case. Tillman v. Baskin, 260 So.2d 509 (Fla. 1972); Murphy v. Community Centers Corporation, 393 So.2d 623 (Fla. 1st DCA 1981); Buchanan Construction, Inc. v. City of Tallahassee, 308 So.2d 613 (Fla. 1st DCA 1975); accord, Preisner v. Cropf, 278 So.2d 295 (Fla. 4th DCA 1973).
Reversed and remanded for a new trial.