DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CONGRESS PARK LIMITED PARTNERSHIP,

Appellant,

v.

CERTAIN UNDERWRITERS AT LLOYD’S, LONDON,

Appellee.

No. 4D14-1516

[June 17, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Catherine M. Brunson, Judge; L.T. Case No. 

502010CA027128XXXXMB.

Arnold R. Ginsberg of Arnold R. Ginsberg, P.A., Miami, and Mark 

Mintz of Mintz Truppman, P.A., North Miami, for appellant.

Darryl L. Gavin of Rumberger, Kirk & Caldwell, Orlando, and William 

Krekstein of Nelson Brown & Co., Blue Bell, Pennsylvania, for appellee.

PER CURIAM.

The appellant, Congress Park Limited Partnership (“the Plaintiff”), 

appeals the summary judgment entered in favor of the appellee, Certain 

Underwriters At Lloyd’s, London (“the Defendant”). Because we agree 

with the Plaintiff that there was a genuine issue of material fact 

precluding the trial court from basing summary judgment on the statute 

of limitations, we reverse.

In 2012, the Plaintiff sought a declaratory judgment related to an 

insurance contract it entered into with the Defendant. Among other 

things, the Plaintiff alleged that the Defendant had not provided a copy of 

the complete policy even though such was requested in discovery. The 

Defendant moved for summary judgment, arguing that “endorsement 10”

to the policy provided that Texas law controlled the dispute, and that the 

Texas statute of limitations barred the suit. The trial court agreed with 

the Defendant and entered summary judgment in favor of the Defendant.

The parties do not dispute that the suit is time-barred under the 
2

Texas statute of limitations but the Plaintiff insists that endorsement 10 

was not actually a part of the policy. The Plaintiff also argues that if

endorsement 10 is included in the policy, it is ambiguous and does not 

elect Texas law. Finally, the Plaintiff asserts that the forum state’s 

statute of limitations must apply.

Without further discussion on the issues, we reject the Plaintiff’s 

arguments that the language of endorsement 10 (if it was included in the 

subject policy) does not constitute a choice of law provision, and that 

even if the provision elected Texas law, Florida’s statute of limitations 

should have been applied. However, we agree the trial court should not 

have based summary judgment on the Texas statute of limitations where 

the record was muddled on the issue of whether the choice of law 

provision was actually contained in the insurance policy. See Dade Cnty. 

Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 643 (Fla. 1999) (“It is a 

well-settled principle of Florida jurisprudence that summary judgment 

should not be granted unless the facts are so clear and undisputed that 

only questions of law remain.”). 

Here, the record indicates there were at least three versions of the 

policy before the trial court, one of which did not contain endorsement 

10. The Defendant provided two versions of the policy to the court, both 

of which contained endorsement 10. However, one policy contained 

pages that the other did not. Clearly, the Plaintiff demonstrated that

there was a genuine issue of material fact, namely whether the policy 

contained the choice of law provision as contained in the purported 

endorsement 10. When there are factual issues that must be resolved in 

order to apply the statute of limitations, summary judgment is 

inappropriate. See Cohen v. Cooper, 20 So. 3d 453, 457 (Fla. 4th DCA 

2009) (finding summary judgment was improper where there was a 

factual issue regarding when the cause of action accrued and the statute 

began running). 

Reversed and remanded for further proceedings.

CIKLIN, FORST and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.