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.