final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 16-22013, Antonio Marin, Judge.
Gammill & Associates, and Warren P. Gammill, for
Jackson Gainsburg, and Nicole R. Rekant and Stevan J. Pardo,
SALTER, EMAS and LOGUE, JJ.
Vazquez ("Luis") appeals a circuit court order
dismissing his amended complaint with prejudice. The appellee
here and defendant in the trial court is Luis's uncle,
Juan Vazquez ("Juan"). The amended complaint
alleges six counts relating to the proceeds of a $120, 000.00
life insurance policy on the life of Luis's father,
René Vazquez ("René"; Juan's
brother). We reverse the order dismissing the amended
complaint with prejudice.
review a final order dismissing a complaint with prejudice
under the de novo standard of review. In doing so, we assume
all of the allegations in the complaint are true. We construe
all reasonable inferences from the allegations in favor of
Luis. United Auto. Ins. Co. v. Law Offices of Michael I.
Libman, 46 So.3d 1101, 1103-04 (Fla. 3d DCA 2010). The
recitation which follows consists of allegations by Luis in
the amended complaint, which are subject to proof and to
defenses that may be raised by Juan.
2003, René was living in Michigan and working at a
business owned by Juan. René's wife, Sulma Vazquez
("Sulma"), and Luis were in their home country,
Bolivia, caring for Sulma's father, who was ill. During
the time he was working in Michigan, René obtained a
Fortis Benefits Insurance Company life insurance policy for
$120, 000.00 on his life (the "Policy"). Although
René designated his brother Juan as the beneficiary of
the Policy, he made it clear to Juan that the proceeds of the
Policy were to be held in trust by Juan for Sulma and Luis
for their education and living expenses after
also left a Last Will and Testament signed in La Paz,
Bolivia, in September 2003 (the "Bolivian Will"). A
translation of the Bolivian Will by a court-certified
interpreter included these provisions:
I [René] . . . in my role as husband and father, being
of sound mind, without any defects in consent, prepare this
will in favor of my wife [Sulma] . . . and of my son [Luis],
so that they can benefit from all the assets I possess or may
acquire in the future, furthermore I declare that I have
obtained a Life Insurance in the United States of North
America in the Company FORTIS BENEFITS INSURANCE COMPANY, for
the amount of US$120, 000 (ONE HUNDRED TWENTY THOUSAND U.S.
DOLLARS) being the only beneficiaries my wife and my son
aforementioned for the purpose of assuring the Education
Living Expenses of both of them . . . .
amended complaint further alleges that René passed
away in late 2003, and Juan received the full proceeds of the
Policy from Fortis Benefits in 2004. Juan and his wife placed
approximately $46, 000.00 of those proceeds in an investment
account at Banc One Securities Corporation; they named Luis
as the sole beneficiary of the money in the account.
grew up, Juan repeatedly acknowledged that the proceeds of
the Policy were intended to be used for Luis's education.
In 2012, at Luis's and Sulma's request, Juan sent
$20, 000.00 of the Policy proceeds to Sulma in Bolivia. Half
of the funds were used for Luis's education, and the
other half was used to fix up his home.
executed a written assignment to Luis of her rights in, and
claims to, the Policy proceeds before the lawsuit was filed.
In the fall of 2014, Sulma and Luis asked Juan to deliver the
balance of the proceeds to Luis to pay for his college
education. "Juan has repeatedly promised that he would
remit the funds to Luis," but in 2015 Juan refused to
pay the remaining proceeds to Luis. Juan claimed instead that
the funds are his. ...