Southern Floridabanc Federal Savings & Loan Ass'n v. First Florida Funding Corp.

PER CURIAM. Appellant, Southern Floridabanc Federal Savings and Loan Association, appeals a final summary judgment in favor of appel-lee, Commonwealth Mortgage Assurance Company, on appellee’s counterclaim for [1134] rescission of a mortgage guaranty contract, and on appellant’s claims for breach of contract and declaratory relief. The trial court rescinded the mortgage guaranty insurance contract issued by appellee, based on the common law doctrine of unilateral mistake of fact. We reverse the final summary judgment and remand for further proceedings based on a holding that unilateral mistake of fact is not a proper ground for rescinding a mortgage guaranty insurance contract in Florida. This is because mistake, as a ground for avoiding an insurance contract, is embodied within section 627.409, Florida Statutes (1989), of the Florida Insurance Code. Since section 627.409, Florida Statutes, has not been incorporated into chapter 635, Florida Statutes (1989), which governs mortgage guaranty insurance, appel-lee may not obtain rescission of its mortgage guaranty insurance contract based on unilateral mistake of fact. See Home Guaranty Insurance Corporation v. Numerica Financial Services, Inc., 835 F.2d 1354 (11th Cir.1988). Reversed and remanded for further proceedings consistent with this opinion.