Opinion
Nos. 92-2135, 92-2861.
August 11, 1993. Opinion Clarifying on Rehearing October 20, 1993.
Appeal from the Circuit Court, Palm Beach County, James T. Carlisle, J.
Betsey E. Gallagher and Gail Leverett of Kubicki, Draper, Gallagher McGrane, P.A., Miami, for appellant.
Joseph S. Kashi of Sperry, Shapiro Kashi, P.A., Fort Lauderdale, for appellees-Levites.
Richard A. Kupfer of Richard A. Kupfer, P.A., and Allen E. Rossin of Cone and Cone, P.A., West Palm Beach, for appellees-Levites.
We reverse the summary final judgment on the authority of Abrams v. General Insurance Co., Inc., 508 So.2d 436 (Fla. 3d DCA 1987). We agree with appellant that the trial court erred in summarily deciding that the appellee-insureds did not make a material misrepresentation in their application for insurance by failing to disclose that their teenage daughter would be driving one of the insured vehicles. Based upon the conflicting evidence in the record before us, we conclude that there is a disputed issue of fact as to the alleged misrepresentation that cannot be properly resolved by summary judgment.
Accordingly, we reverse and remand for further proceedings in accord herewith.
ANSTEAD and GLICKSTEIN, JJ., and BIRKEN, ARTHUR M., Associate Judge, concur.
OPINION ON REHEARING
We grant the appellant's motion for clarification to the extent that we acknowledge our reversal of August 11, 1993, extends to both the final summary judgment appealed in Case No. 92-2135, as well as the judgment for costs and attorney's fees appealed in Case No. 92-2861. We deny the motion for rehearing and clarification filed by the appellees, Miles and Hazel Levites.
ANSTEAD and GLICKSTEIN, JJ., and BIRKEN, ARTHUR M., Associate Judge, concur.