STAR CASUALTY INSURANCE COMPANY v. GABLES INSURANCE RECOVERY, INC., A/A/O JESUS PORTAL

Third District Court of Appeal
State of Florida

Opinion filed September 8, 2021.
Not final until disposition of timely filed motion for rehearing.

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No. 3D21-64
Lower Tribunal Nos. 11-15721 SP, 19-286 AP
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Star Casualty Insurance Company,
Appellant,

vs.

Gables Insurance Recovery, Inc., a/a/o Jesus Portal,
Appellee.

An Appeal from the County Court for Miami-Dade County, Patricia
Marino Pedraza, Judge.

Hunker Appeals, and Thomas L. Hunker and Virginia A. Paxton (Fort
Lauderdale), for appellant.

The Billbrough Firm, and G. Bart Billbrough, for appellee.

Before EMAS, LOGUE and SCALES, JJ.

EMAS, J.
 Star Casualty Insurance Company, defendant below, appeals final

judgment entered against it in a breach of contract action filed by Gables

Insurance Recovery, Inc. (“Gables”), following the trial court’s denial of its

motion to enforce settlement agreement. We reverse and remand for the

trial court to conduct an evidentiary hearing.

In 2008, Jesus Portal was injured in an automobile accident and sought

medical treatment from, inter alia, Finlay Diagnostic Center, Inc. (x-rays) and

Asclepius Medical, Inc. (physical therapy). Portal assigned his no-fault

benefits under his insurance policy with Star Casualty Insurance Company

to these two medical providers, each of whom later assigned their rights to

Gables. In 2011, Gables filed two separate lawsuits against Star Casualty

for breach of contract, alleging Star Casualty had improperly calculated the

fee structure rate (these two lawsuits will hereinafter be referred to as the “X-

Ray litigation” and the “PT litigation.”)

On September 15, 2016, Star Casualty confessed judgment in the PT

litigation and the parties later entered a settlement agreement. Following

this settlement, the X-Ray litigation continued for more than two years, but

on June 10, 2019, Star Casualty filed a motion to enforce the 2017 settlement

agreement, asserting it had settled “all claims arising out of Portal’s motor

vehicle accident,” including the claims raised in the X-Ray litigation. Gables

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moved for sanctions and argued that the 2017 settlement was solely for

attorney’s fees and costs in the PT litigation case and had nothing to do with

the X-Ray litigation.

The trial court conducted a non-evidentiary hearing, at which Star

Casualty argued the settlement agreement unambiguously encompassed

both pending lawsuits, and urged the court not to consider any parol

evidence. Gables agreed that the court need not resort to parol evidence

because there was no evidence of a “meeting of the minds” to settle the X-

Ray litigation. Gables argued, alternatively, that if the court found the

material terms of the agreement were ambiguous, the court could consider

parol evidence in adjudicating the motion to enforce settlement.

Following argument by counsel, the trial court denied Star’s motion to

enforce the settlement agreement. Star Casualty then stipulated to a final

judgment against it, reserving its right to appeal the denial of its motion to

enforce settlement.

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 Following our de novo review, 1 we hold that the language in the

agreement contains a latent ambiguity 2 such that it was necessary for the

trial court to conduct an evidentiary hearing and consider parol evidence to

determine the intent of the parties to the settlement agreement. See

Commercial Cap. Res., LLC v. Giovannetti, 955 So. 2d 1151, 1153 (Fla. 3d

DCA 2007) (holding “where the wording of an agreement is ambiguous, its

interpretation involves questions of fact, precluding summary disposition and

requiring an evidentiary hearing”) (quotation omitted); Brickell Fin. Servs. –

Motor Club, Inc. v. Road Transp., LLC, 298 So. 3d 62, 67 (Fla. 4th DCA

2020) (same); Nationstar Mortg. Co. v. Levine, 216 So. 3d 711, 715 (Fla. 4th

DCA 2017) (noting that “extrinsic evidence . . . is admissible to explain a

latent ambiguity . . . because doing so is but to remove the ambiguity by the

same kind of evidence as that by which it is created” (internal quotation

omitted)).

Reversed and remanded.

1
See Marin v. Infinity Auto Ins. Co., 239 So. 3d 751 (Fla. 3d DCA 2018);
Brickell Fin. Servs. – Motor Club, Inc. v. Road Transp., LLC, 298 So. 3d 62,
67 (Fla. 4th DCA 2020 (holding “whether a contract is ambiguous is reviewed
de novo.”) (quotation omitted).
2
See Riera v. Riera, 86 So. 3d 1163, 1166 (Fla. 3d DCA 2012) (holding: “A
latent ambiguity arises when the language in a contract is clear and
intelligible, but some extrinsic fact or extraneous evidence creates a need for
interpretation or a choice between two or more possible meanings”)
(quotation omitted).

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