Sena v. State Farm Mutual Automobile Ins. Co. , 305 So. 2d 243 ( 1974 )

305 So. 2d 243 (1974)

Carmen Marimon SENA et al., Appellants,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign Corporation, Appellee.

No. 73-1392.

District Court of Appeal of Florida, Third District.

December 10, 1974.

Horton, Perse & Ginsberg, Rabin, Sasson & Ratiner, Miami, for appellants.

Kuvin, Klingensmith & Coon and R. Fred Lewis, Coconut Grove, for appellee.

Before PEARSON and NATHAN, JJ., and GREEN, ROBERT A., Jr., Associate Judge.

NATHAN, Judge.

The plaintiffs appeal an adverse summary final judgment in favor of the defendant.

We find the decisive issue in the case to be whether an insured is entitled to uninsured motorist benefits under his insurance policy, when he has entered into a settlement with, and executes a release in favor of a person who may be liable for the insured's injuries, in violation of the terms of the policy including the insured's right of subrogation. Florida cases clearly answer this question in the negative. See Oren v. General Accident Fire & Life Assurance Corporation, Fla.App. 1965, 175 So. 2d 581; Phoenix Insurance Company v. Bowen, Fla.App. 1965, 178 So. 2d 751; American Fidelity Fire Insurance Company v. Richardson, Fla.App. 1966, 189 So. 2d 486.

The appellants rely on the case of Kaplan v. Phoenix of Hartford Insurance Company, Fla.App. 1968, 215 So. 2d 893, to urge the proposition that summary final judgment should not be entered where it is shown that the settlement agreement has not prejudiced the insurer. However, there being no indication in the record that the issue of prejudice was brought before the trial court, this court is now unable to entertain the matter for the first time on appeal. Alliance For Conservation of Natural Resources in Pinellas County v. Furen, Fla.App. 1960, 122 So. 2d 51, 65.

Therefore, for the reasons stated and upon the authorities cited, the order is affirmed.

Affirmed.