Johnson v. Home Indemnity Company , 377 So. 2d 40 ( 1979 )

377 So. 2d 40 (1979)

Hugh W. JOHNSON, Appellant,
v.
HOME INDEMNITY COMPANY, a New York Corporation, Appellee.

No. KK-142.

District Court of Appeal of Florida, First District.

November 21, 1979.

C. Chobee Ebbets of Anthony I. Provitola, P.A., Daytona Beach, for appellant.

David C. Beers of Rogers & Dowling, P.A., Orlando, for appellee.

PER CURIAM.

Hugh Johnson seeks review of a final summary judgment entered in favor of his uninsured-underinsured carrier, Home Indemnity Company. Because there were justiciable issues of material facts, the trial court erred in granting summary judgment in favor of Home Indemnity Company and in entering final judgment thereon.

Although Johnson had executed a Satisfaction of Judgment to the active tortfeasors after accepting an offer of judgment for their full policy limits allegedly without the express written consent of his uninsured-underinsured carrier, Home Indemnity Company, we find that factual questions existed as to prejudice to the insurer. Cf. Bass v. Aetna Casualty and Surety Company, 199 So. 2d 790 (Fla. 4th DCA 1967); Sena v. State Farm Mutual Automobile Insurance Company, 305 So. 2d 243 (Fla. 3d DCA 1974); McInnis v. State Farm Mutual Automobile Insurance Company, 208 So. 2d 481 (Fla. 4th DCA 1968); Travelers Insurance Company v. Gray, 360 So. 2d 16 (Fla. 3d DCA 1978). These disputed issues of material fact precluded entry of a summary judgment. The final summary judgment entered in favor of Home Indemnity Company is reversed and the cause is remanded for further proceedings consistent herewith.

MILLS, C.J., and MASON, ERNEST E., Associate Judge, concur.

ROBERT P. SMITH, Jr., J., dissents.