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Florida Third DCA reverses trial court’s dismissal of plaintiff’s complaint, finding that dismissal was impermissibly based on grounds not included in defendant’s motion to dismiss

On September 9, 2020, in Howard v. Greenwich Insurance Company, No. 3D19-1922, the Florida Third DCA reversed a trial court’s dismissal of the plaintiff’s complaint in a premises liability case. The defendant insurance company was being sued by the plaintiff as an alleged third-party beneficiary of medical payments benefits under a policy owned by another defendant who had already reached a settlement with the plaintiff. The defendant insurance company had successfully argued before the trial court that the plaintiff was barred from seeking recovery under the medical payments provision of the insurance policy because he was already compensated for his medical expenses from the settlement agreement and release of liability with the settling defendant. Because the plaintiff’s settlement did not yet exist when the plaintiff filed his second amended complaint, the trial court took judicial notice of those documents and concluded that the settlement and release of all claims against the settling defendant also extinguished the plaintiff’s claim against the insurance company as a matter of law, relying on Rosen v. Fireman’s Fund Insurance Company, 189 So. 2d 395 (Fla. 3d DCA 1966). However, this was not the basis of the defendant insurance company’s motion to dismiss, which alleged that the complaint failed to attach the insurance policy and failed to state a cause of action by failing to allege a duty. The Third DCA concluded that “entry of the final judgment stemming from a pre-trial motion to dismiss that did not raise the issue on appeal as a basis for dismissal—let alone dismissal with prejudice—constitutes reversible error.”