Third District Court of Appeal

State of Florida 

Opinion filed April 10, 2024.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1529

Lower Tribunal No. 17-14026 SP

________________

Florida Insurance Guaranty Association,

Appellant,

vs.

Manuel V. Feijoo, M.D., and Manuel V. Feijoo, M.D., P.A., etc.,

Appellees.

An Appeal from the County Court for Miami-Dade County, Elijah A. 

Levitt, Judge.

Kubicki Draper, P.A., and Caryn L. Bellus and Jacqueline M. Bertelsen 

and Barbara E. Fox, for appellant.

Douglas H. Stein, P.A., and Douglas H. Stein; Law Offices of Kenneth 

B. Schurr, P.A., and Kenneth B. Schurr, for appellees.

Before FERNANDEZ, GORDO and LOBREE, JJ. 

PER CURIAM.

Florida Insurance Guaranty Association (“FIGA”) appeals an order of
2

final summary judgment entered in favor of Manuel V. Feijoo, M.D., and

Manuel V. Feijoo, M.D., P.A., a/a/o Jaqueline O’Reilly (“Feijoo”). Because 

the trial court erred in granting a motion for summary judgment on a claim 

that was not pled, we reverse.

BACKGROUND

In 2017, Feijoo filed suit against Windhaven Insurance Company 

(“Windhaven”) raising two counts: (1) for breach of contract for failure to pay 

PIP benefits; and (2) for declaratory relief establishing whether Windhaven

had improperly cancelled the subject insurance policy for alleged 

nonpayment without notice. FIGA was substituted as defendant after 

Windhaven was declared insolvent. In 2021, Feijoo filed an amended

complaint now naming FIGA as defendant but raising identical claims.

While the litigation was pending, FIGA tendered full payment to Feijoo 

for its claim. Feijoo subsequently filed a motion for summary judgment as to 

its declaratory judgment claim now alleging it was entitled as a matter of law 

to a declaration that: (1) the subject insurance policy was in full force and 

effect on the date of loss and throughout the term of the policy; (2) the policy 

was not void ab initio; and (3) there was no material misrepresentation on 

the policy application. FIGA filed its own motion for final summary judgment 
3

and response asserting, in part, that Feijoo’s motion sought judgment on 

claims not pled.

The trial court held a hearing on the motions and entered an order

granting Feijoo’s motion for summary judgment and denying FIGA’s motion. 

FIGA moved for rehearing reasserting its arguments, but the trial court 

denied the motion. This appeal followed.

ANALYSIS

“We review an order granting final summary judgment de novo.”

Navarro v. Citizens Prop. Ins. Corp., 353 So. 3d 1276, 1279 (Fla. 3d DCA 

2023). It is well-established Florida law that a party is not entitled to 

summary judgment on a cause of action that was never pled. See Kuehne 

& Nagel, Inc. v. Lewis Marine Supply, Inc., 365 So. 2d 204, 205 (Fla. 3d DCA 

1978) (“It is axiomatic that a party is never entitled to summary judgment 

based on a cause of action not pled in the complaint.”); Wilson v. Jacks, 310 

So. 3d 545, 547 (Fla. 1st DCA 2021) (“[I]ssues and claims not specifically 

pleaded in a party’s complaint or answer cannot be considered by a trial court 

reviewing a summary judgment motion.”); Fernandez v. Fla. Nat’l Coll., Inc., 

925 So. 2d 1096, 1101 (Fla. 3d DCA 2006) (“[I]ssues that are not pled in a 

complaint cannot be considered by the trial court at a summary judgment 

hearing.”).
4

Review of the record shows Feijoo’s motion sought summary judgment 

on a declaratory claim it did not plead. In the applicable amended complaint, 

Feijoo’s declaratory judgment claim sought a declaration that the subject 

insurance policy was not properly cancelled for alleged nonpayment. 

However, in its motion for summary judgment, Feijoo for the first time 

asserted it was entitled to summary judgment on a declaratory judgment 

claim for a declaration that the subject policy was in full force and effect, not 

void ab initio, and there was no material misrepresentation in the application 

for insurance. While both were claims for declaratory judgment, the actual 

declaration sought in the motion for summary judgment was substantially 

different than the one in the complaint. Accordingly, we find the trial court 

erred in granting Feijoo’s motion as Feijoo was not entitled to summary 

judgment on a declaratory relief claim it never pled.

Reversed and remanded.