Claim of Estoppel Does Not Create Coverage

Coverage by Estoppel Requires Evidence of Prejudice

Emulating their brother jurists in New York the District Court of Appeal of Florida wrote a succinct, brief and easy to understand an insurance coverage dispute. In Progressive Express Insurance Company v. Anzualda Brothers — So.3d —, Inc., District Court of Appeal of Florida, 2017 WL 535395 (2/10/17) the operator of an uninsured vehicle convinced the trial court to grant the operator coverage by operation of estoppel


Progressive Express Insurance Company (Progressive), challenged the trial court’s entry of a declaratory judgment determining that there was insurance coverage in favor of appellee Anzualda Brothers, Inc. (Anzualda) by operation of estoppel.

Progressive argued it should not have to provide coverage for Anzualda’s accident, which resulted in the fatality of one victim and the injury of another victim, because the vehicle Anzualda had been driving was not a listed vehicle on the insurance policy, and because Anzualda failed to prove all three elements of its coverage by estoppel claim.

Anzualda cross-appealed, alleging the trial court erred in its refusal to enforce a settlement agreement and consent judgment that were agreed to by Progressive and entered in the separate, underlying tort case between Anzualda and the victims.


The appellate court concluded that Anzualda 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.

Because Anzualda failed to sufficiently prove prejudice, the verdict was reversed, the trial court’s final judgment in favor of Anzualda was vacated, and remanded for the trial court to enter final judgment in favor of appellant Progressive.

Because the court remanded the case to the trial court to enter final judgment in favor of Progressive, Anzualda’s cross-appeal requesting damages from Progressive in the amount outlined in the settlement agreement is moot.


Estoppel is an equitable concept that changes conclusions of law to be fair because the actions of an insurer did or said something that that an insured relied upon to its damage because it relied on the statements of the  insurer. Since Anzualda did not prove it was prejudiced by Progressive’s conduct it had no right to estoppel. All Anzualda needed to do to have coverage is to list the car.

ZALMA-INS-CONSULT                      © 2017 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 49 years in the insurance business.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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