PERSONAL FIN. v. COM. LAND TITLE, 678 So.2d 463 (Fla.App. 3 Dist. 1996)

PERSONAL FINANCE COMPANY, APPELLANT, v. COMMONWEALTH LAND TITLE INSURANCE COMPANY, APPELLEE.

No. 95-2348.District Court of Appeal of Florida, Third District.
August 14, 1996.

Appeal from the Circuit Court, Dade County, Rosemary Usher Jones, J.

Page 464

Friedlander Associates and Bruce A. Friedlander, for appellant.

Keith, Mack, Lewis, Cohen Lumpkin and R. Hugh Lumpkin and Sarah B. Clasby, Miami, for appellee.

Before SCHWARTZ, C.J., and NESBITT and FLETCHER, JJ.

SCHWARTZ, Chief Judge.

After a bench trial, the lower court entered judgment for the defendant carrier in an action on a “loan policy of title insurance.” We reverse with directions to enter judgment for the plaintiff instead.

In our opinion, the evidence established without contradiction (a) that the plaintiff sustained a covered loss by having unknowingly lent and lost funds on a forged mortgage, see Lloyd v. Chicago Title Ins. Co., 576 So.2d 310 (Fla. 3d DCA 1990) (b) that as the “owner of the indebtedness,” the plaintiff was an insured as defined by the policy, notwithstanding that the forged mortgage was assigned as collateral to its own financier, see § 697.02, Fla.Stat. (1995), and (c) that there was no basis to sustain either of the defenses (i) that the plaintiff had “assumed or agreed to” the defect insured against, see First American Title Ins. Co. v. Kessler, 452 So.2d 35 (Fla. 3d DCA 1984); Annot., Title Insurance: Exclusion of Liability for Defects, Liens, or Encumbrances Created, Suffered, Assumed, or Agreed to by the Insured, 87 A.L.R.3d 515 (1978); see als Mitchel v. Cigna Property Casualty Ins. Co., 625 So.2d 862, 864-65 n. 9 (Fla. 3d DCA 1993); cf. Shada v. Title Trust Co., 457 So.2d 553 (Fla. 4th DCA 1984), pet. for review denied, 464 So.2d 556 (Fla. 1985); Holinda v. Title Trust Co., 438 So.2d 56 (Fla. 5th DCA 1983), pet. for review denied, 449 So.2d 265 (Fla. 1984); Endruschat v. American Title Ins. Co., 377 So.2d 738 (Fla. 4th DCA 1979), or (ii) because it did not prejudice the carrier, that the allegedly late notice of the claim barred recovery. See Ramos v. Northwestern Mut. Ins. Co., 336 So.2d 71 (Fla. 1976); Tiedtke v. Fidelity Casualty Co., 222 So.2d 206 (Fla. 1969); Attorneys’ Title Ins. Fund, Inc. v. Rogers, 552 So.2d 329 (Fla. 4th DCA 1989); Hartford Accident Indem. Co. v. Phelps, 294 So.2d 362 (Fla. 1st DCA 1974).

Accordingly, the cause is remanded with directions to enter judgment for the appellant in the amount of the policy, $87,500, and appropriate interest and attorney’s fees.

Reversed and remanded.