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Florida Second DCA rules that UM insurer waived condition precedent of exhaustion of other collectible insurance when noncompliance was not raised in its affirmative defenses

On October 13, 2017, in Schoeck v, Allstate Insurance Company, No. 2D16-3161, the Florida Second DCA reversed a trial court’s summary judgment in favor of the defendant UM insurer. The summary judgment had been entered because the insured plaintiff, who was also insured under another UM policy with another insurer, allegedly had failed to comply with a policy condition precedent requiring her to exhaust all other sources of collectible insurance. The Florida Second DCA noted that Fla. R. Civ, P. 1.120(c) requires a pleader to deny the performance or occurrence of conditions precedent “specifically and with particularity,” and in this case the defendant had only included a general affirmative defense that the recovery should be reduced or barred to the extent of available insurance coverage “available to any individual or entity who may be wholly or partially responsible for the damages.” Since the affirmative defense was limited to coverage available to the tortfeasor and did not specifically allege that the plaintiff had failed to exhaust the other UM coverage, the Second DCA concluded that the defense had been waived through lack of specificity.
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