STATE of Florida, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellant, v. A-C SONS CO., INC., Appellee, 774 So. 2d 879

PER CURIAM. The Department of Environmental Protection appeals a final

summary judgment by which the trial court determined that the uncontroverted facts establish that the third party defense in

section 403.727(5)(d), Florida Statutes, protects the appellee from the Department’s claims. However, the record does not establish that the appellee exercised the due care necessary under

section 408.727(5)(d)l, and instead reveals that this was an issue of fact which remained in dispute. We do not consider whether the third party defense would otherwise apply upon the presentation made below, as we conclude that this disputed issue of material fact precludes the entry of

summary judgment. The appealed order is reversed and the case is remanded. JOANOS, ALLEN and KAHN, JJ., concur.