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Sheikh v. Coregis Ins. Co.
Citations: 943 So. 2d 242; 2006 WL 3208565Docket: 3D06-768
Court: District Court of Appeal of Florida; November 7, 2006; Florida; State Appellate Court
Barbra Sheikh (n/k/a Barbra Kramn) appeals an order from the District Court of Appeal of Florida, Third District, which granted Coregis Insurance Company's motion for summary judgment. The underlying case involves Sheikh's legal malpractice claim against Gregory Gamble, a Louisiana attorney, following the dismissal of her federal lawsuit related to her husband's death at sea, due to Gamble's failure to appear in court. Sheikh obtained a default judgment against Gamble for over $2 million in 2003, which remains unsatisfied. Gamble, who struggled with drug addiction and failed to inform Coregis about the lawsuit or the judgment, believed his malpractice insurance policy had been canceled, although Coregis later stipulated the policy was effective during the malpractice incident. Gamble’s former secretary indicated that she was informed by an insurance agent that the policy had been canceled in June 1998. Sheikh's legal counsel attempted to confirm the existence of malpractice insurance but faced non-disclosure from Gilsbar, the insurance agent. Despite Gilsbar's communication about the potential claim to Coregis, the insurer did not respond or contact Gamble’s firm. Sheikh subsequently filed an action against Coregis to enforce the default judgment, leading to Coregis's motion for summary judgment, which was granted by the trial court. The appellate court reversed this decision. The trial court granted summary judgment, noting that Coregis did not receive prior notice of a claim before the lawsuit was filed. It determined that Sheikh's counsel was informed by Gilsbar that Coregis insured Gamble and that Sheikh opted not to notify Coregis about the claim. The court ruled that Coregis was not liable under the policy since Gamble did not rely on any alleged cancellation of the policy when failing to inform Coregis of the lawsuit. Sheikh subsequently appealed. In reviewing the summary judgment, it is emphasized that such a ruling is appropriate only when no genuine issues of material fact exist, and the court must view the record favorably towards the non-moving party. The appellate review confirmed that the trial court correctly identified the undisputed lack of notice but found genuine issues of material fact that warranted reversing the summary judgment. Louisiana law governs the case, asserting that an insurer generally cannot use an insured's failure to give notice as a defense against an injured third party's claim unless it proves prejudice from that failure. Coregis alleged that Sheikh, aware of the insurance, failed to communicate the claim, yet evidence indicated Sheikh's counsel received a refusal to disclose Coregis as the insurer, creating a factual dispute about Sheikh's knowledge of the insurance coverage. Coregis argued it suffered prejudice because it had no notice of the lawsuit, preventing it from defending itself. However, it remains unclear whether Coregis would have defended the action, which is a material fact that precludes summary judgment. Additionally, a dispute exists regarding whether Coregis contributed to the lack of notice through a potentially defective cancellation of the policy. Ultimately, the appellate court reversed the trial court's summary judgment in favor of Coregis, citing the presence of genuine material facts that necessitate further proceedings.