                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

PROGRESSIVE EXPRESS                  NOT FINAL UNTIL TIME EXPIRES TO
INSURANCE COMPANY,                   FILE MOTION FOR REHEARING AND
                                     DISPOSITION THEREOF IF FILED
      Appellant/Cross-Appellee,

v.                                   CASE NO. 1D15-4700

ANZUALDA BROTHERS, INC.,
a Florida Corporation, JESUS E.
MARINO CASTILLO,
individually and as an employee
of Anzualda Brothers,

      Appellees/Cross-Appellees.

_____________________________/

Opinion filed February 10, 2017.

An appeal from the Circuit Court for Levy County.
Stanley H. Griffis, III, Judge.

Scott A. Cole, Cole Scott & Kissane, P.A., Miami; Joseph T. Kissane, Steven L.
Worley, Cole, Scott & Kissane, P.A., Jacksonville, for Appellant/Cross-Appellee.

Lincoln J. Connolly, Trials & Appeals, P.A., Miami, for Appellee/Cross-Appellant,
Anzualda Brothers, Inc.




WOLF, J.

      Appellant, Progressive Express Insurance Company, challenges the trial

court’s entry of a declaratory judgment determining that there was insurance
coverage in favor of appellee Anzualda Brothers, Inc. by operation of estoppel.

Appellant argues it should not have to provide coverage for appellee’s accident,

which resulted in the fatality of one victim and the injury of another victim,

because the vehicle appellee had been driving was not a listed vehicle on the

insurance policy, and because appellee failed to prove all three elements of its

coverage by estoppel claim.

      Appellee cross-appeals, alleging the trial court erred in its refusal to enforce

a settlement agreement and consent judgment that were agreed to by appellant and

entered in the separate, underlying tort case between appellee and the victims.

      We agree with appellant that appellee failed to prove all three elements of its

coverage by estoppel claim. In an insurance coverage by estoppel claim, the

plaintiff must prove (1) the defendant company made a representation of material

fact; (2) the plaintiff reasonably relied on that representation of material fact; and

(3) the plaintiff was prejudiced by its reliance. Bishop v. Progressive Express Ins.

Co., 154 So. 3d 467, 468 (Fla. 1st DCA 2015).           Because appellee failed to

sufficiently prove prejudice, we reverse, vacate the trial court’s final judgment in

favor of appellee, and remand for the trial court to enter final judgment in favor of

appellant.




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      Because we remand for the trial court to enter final judgment in favor of

appellant, appellee’s cross-appeal requesting damages from appellant in the

amount outlined in the settlement agreement is moot.

MAKAR and WINSOR, JJ., CONCUR.




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