Hernandez v. Aguiar

Full title: CONSUELO HERNANDEZ AND PABLO HERNANDEZ, HER HUSBAND, APPELLANTS, v…

Court: District Court of Appeal of Florida, Third District

Date published: Jun 21, 1983

433 So. 2d 54 (Fla. Dist. Ct. App. 1983)

Opinion

No. 82-1704.

June 21, 1983.

Appeal from the Circuit Court, Dade County, Lenore C. Nesbitt, J.

Mark Alan LeVine, Miami, for appellants.

Thomas J. Meroni and Leonard F. Burr, Miami, for appellees.

Before BARKDULL, HUBBART and JORGENSON, JJ.

PER CURIAM.

The final judgment under review is affirmed upon a holding that the action herein is barred by a general unconditional release given by the plaintiffs herein in full settlement of the claims asserted below. There was only one tortfeasor in the instant negligence action, the defendant Cesario Aguiar who was the insured under two separate insurance policies covering this tort incident — one with South Carolina Insurance Company and one with the defendant Travelers Insurance Company. The plaintiffs have since settled their claims against the defendant Aguiar for valuable consideration [$10,000] and have given a general, unconditional release to one of the defendant Aguiar's insurers [South Carolina Insurance Company] which necessarily releases the defendant Aguiar as the sole tortfeasor in this incident. The settlement and release forever bars the plaintiffs from asserting the same claims below against the defendant Aguiar and his additional insurer, the defendant Travelers Insurance Company. Genung v. Loftin, 152 Fla. 759, 13 So.2d 149 (1943); D.F.S., Inc. v. Beasley Crane Service Sales, Inc., 251 So.2d 727 (Fla. 2d DCA), cert. denied, 255 So.2d 682 (Fla. 1971). This is not a case involving a general release of one of several joint tortfeasors, as only one tortfeasor is involved herein; as such, Hurt v. Leatherby Insurance Co., 380 So.2d 432 (Fla. 1980), is entirely inapplicable to this case.

Affirmed.

JORGENSON, Judge, dissenting.

I respectfully dissent. I would treat the trial court's order granting summary judgment in favor of Cesario Aguiar as an order granting partial summary judgment to the extent that South Carolina Insurance Company has satisfied the obligation owed to its insured and would remand to the trial court for further proceedings in light of Hurt v. Leatherby Insurance Co., 380 So.2d 432 (Fla. 1980); see Gonzalez v. Travelers Indemnity Co. of Rhode Island, 408 So.2d 741 (Fla. 3d DCA 1982).

The broad language of the Florida Supreme Court in Hurt is sufficient in my view to accommodate the appellant in the case sub judice.