145 So. 2d 762 | Fla. Dist. Ct. App. | 1962
The plaintiff below has appealed from a judgment entered on a directed verdict for the defendant. In a prior action against the insured for personal injuries, in which he was defended by the insurance company’s attorneys, a judgment was obtained for $5,000 plus certain costs. The insurer company then disclaimed liability, and this suit was filed on the policy. The complaint contained a general allegation of compliance with conditions precedent, one of which was co-operation with the insurer.
“The question of whether or not Nicholas Scocos violated the condition of the liability policy above referred to in such manner as to relieve the surety company of liability on its policy became a question of fact for the jury to determine, the burden of proof being on the surety company to show that such condition of the policy had been so violated. See Taxicab Motor Co. v. Pacific Coast Casualty Co., etc., 73 Wash. 631, 132 P. 393; United States Fidelity & Guaranty Co. v. Williams, 148 Md. 289, 129 A. 660; United States Casualty Co. v. Drew (C.C.A.), 5 F.2d 498.”
The plaintiff met its burden to show a prima facie case. It was not required to disprove the affirmative defense averred by the defendant. United States Fidelity & Guaranty Co. v. Snite, supra; Kimbro v. Metropolitan Life Insurance Company, Fla.App.1959, 112 So.2d 274, 277-278. We therefore hold that on this record the appellant is entitled to a new trial.
Accordingly, the judgment appealed from is reversed and the cause remanded for new trial.
Reversed and remanded.
. Paragraph 2 of the complaint reads: “2. The plaintiff paid to the defendant the premium required to be paid under the said contract of insurance and performed all of the matters and things required under the said contract of insurance to be performed by the plaintiff.”
. “In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.”
. The answer directed to paragraph 2 of the complaint was: “2. It [defendant] denies eaeli fact alleged in Paragraph 2, except it admits that the plaintiff paid the premiums.”
.Paragraph 6 of the complaint alleged that the insurer, through its attorneys, had defended the personal injury action and handled an appeal from the adverse judgment. In answer thereto the defendant averred: “6. It [defendant] admits each fact alleged in Paragraph 6, but avers that the defense of the action was continued through trial upon a reservation of rights notice served upon the assured due to his failure to attend the trial as requested, and as required by the policy, even though the assured had