Opinion
No. 95-0587.
March 20, 1996. Rehearing Denied April 26, 1996.
Appeal from the Circuit Court of the Seventeenth Judicial Circuit, Broward County; Miette K. Burnstein, Judge.
Wayne W. Pomeroy of Pomeroy Pomeroy, P.A., and Rosemary Wilder of Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, for appellant.
Bohdan Neswiacheny and Glenn J. Webber of Law Offices of Bohdan Neswiacheny, Fort Lauderdale, for Appellee-Old Republic Insurance Company.
Ted R. Manry, III, and H. Vance Smith of Macfarlane, Ausley, Ferguson and McMullen, Tampa, for Appellee-Reliance Insurance Company.
The pleadings, depositions and affidavits in the record reveal a genuine issue of material fact as to the intention of the subject agreement; namely, whether appellant was contingently to receive monies pursuant to the agreement in addition to the monies being sought by it through its cross-claim. To this extent we reverse the final judgment and remand for non-jury trial of the issue.
We note, however, that on remand, the question of whether appellant was entitled to a reimbursement of insurance premiums is not to be considered, as this issue was not raised by the pleadings or by the parties.
GLICKSTEIN, DELL and POLEN, JJ., concur.