Second DCA
AJ Therapy Center, Inc. Imperial Fire & Casualty Insurance Company—(J. Casanueva; 2DCA; 1/13/23). The plaintiff’s victory in this appeal is likely to be short-lived. AJ Therapy Center provided benefits to an insured person after a motor vehicle accident and received an assignment of benefits (“AOB”). After payment was denied, AJ sued the insurer in a declaratory judgment action. The insurer countered that the underlying insurance policy had already been declared void ab initio in a consent final judgment due to the insured’s attempted insurance fraud. The trial court dismissed the dec action. AJ appealed. The DCA held that it was error to rely on facts outside the Complaint in a motion to dismiss, so it reversed. Of course, on remand, the insurer is simply going to file for summary judgment, and it’s hard to imagine how they won’t prevail, so one wonders why AJ bothered.
https://supremecourt.flcourts.gov/content/download/857899/opinion/213264_DC13_01132023_ 095421_i.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
PDF Version