Opinion
No. 90-634.
January 29, 1991. Rehearing Denied March 14, 1991.
Appeal from the Circuit Court, Dade County, Steven D. Robinson, J.
Mattlin McClosky, and Jodi R. Mattes, Boca Raton, for appellant.
Murai, Wald, Biondo Moreno, and Jorge L. Guerra, Miami, for appellee Commonwealth Mort. Assur. Co.
Before SCHWARTZ, C.J., and NESBITT and GERSTEN, JJ.
Appellant, Southern Floridabanc Federal Savings and Loan Association, appeals a final summary judgment in favor of appellee, Commonwealth Mortgage Assurance Company, on appellee's counterclaim for rescission of a mortgage guaranty contract, and on appellant's claims for breach of contract and declaratory relief. The trial court rescinded the mortgage guaranty insurance contract issued by appellee, based on the common law doctrine of unilateral mistake of fact.
We reverse the final summary judgment and remand for further proceedings based on a holding that unilateral mistake of fact is not a proper ground for rescinding a mortgage guaranty insurance contract in Florida. This is because mistake, as a ground for avoiding an insurance contract, is embodied within section 627.409, Florida Statutes (1989), of the Florida Insurance Code. Since section 627.409, Florida Statutes, has not been incorporated into chapter 635, Florida Statutes (1989), which governs mortgage guaranty insurance, appellee may not obtain rescission of its mortgage guaranty insurance contract based on unilateral mistake of fact. See Home Guaranty Insurance Corporation v. Numerica Financial Services, Inc., 835 F.2d 1354 (11th Cir. 1988).
Reversed and remanded for further proceedings consistent with this opinion.