THOMAS WHITLEY, APPELLANT,
v.
MARYLAND CASUALTY COMPANY, APPELLEE
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Whitley settled a third-party tort claim for $250,000 with Maryland Casualty's subrogation interests included. The settlement funds were allegedly placed in escrow pending determination of Maryland Casualty's subrogation claim. When Maryland Casualty appealed the subrogation ruling and refused to release the funds, Whitley sued for breach of the escrow agreement and conversion. The appellate court affirmed dismissal of the conversion claim but reversed dismissal of the breach of contract claim and remanded for amendment.
The court affirmed dismissal of the conversion claim (Count III) because Maryland Casualty's refusal to release the funds constituted at most a breach of contract, not conversion, since the funds were in joint possession and Maryland Casualty never exercised exclusive ownership. The court reversed dismissal of the breach of contract claim (Count II) and remanded to allow Whitley to allege with greater specificity when Maryland Casualty agreed to release the funds, particularly in light of Maryland Casualty's pending appeal of the subrogation ruling.
[1] A claim for conversion requires an assertion of exclusive ownership over the property, not merely a refusal to release jointly possessed funds.
[2] A ruling is not final and appealable until the appeal process is exhausted.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The refusal of Maryland Casualty was at most a breach of the verbal agreement between the parties. At no time did Maryland Casualty attempt to exercise exclusive ownership of the funds in the account.”
Explains why conversion claim fails; breach of contract does not constitute conversion absent exclusive ownership of funds
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Join FLexlaw to unlock all legal intelligenceWhitley suffered a compensable industrial accident and received workers' compensation benefits from Maryland Casualty. He subsequently settled his cla…
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[*477] SHIVERS, Judge.
Maryland Casualty, the workmen’s compensation carrier for Whitley’s employer, paid Whitley certain workmen’s compensation benefits following Whitley’s compensable industrial accident. Whitley settled his claim against a third party tortfeasor for $250,000, which included the subrogation interests of Maryland Casualty. The settlement check from the third party tortfeasor was made payable to Maryland Casualty and Whitley. Maryland Casualty and Whitley allegedly entered into a verbal escrow agreement.
Whitley brought a three count Amended Complaint against Maryland Casualty. The allegations of Count I are not involved on this appeal. Count II alleged that the parties had agreed to place $125,000.00 of the settlement funds in an escrow account “from which the funds could not be withdrawn without defendant’s (Maryland Casualty’s) consent until defendant’s workmen’s compensation subrogation amount had been determined by Circuit Judge Major B. Harding and paid by plaintiff.” Count II further alleges that Judge Harding ruled on the subrogation issue; that Whitley paid the amount determined by Judge Harding; and that Maryland Casualty breached the verbal agreement by refusing to consent to the release of the funds to Whitley.
Count III alleges that Maryland Casualty wrongfully deprived Whitley of the funds in the account, constituting an act of conversion and that the conversion was willful, wanton and malicious, entitling Whitley to punitive damages.
Maryland Casualty appealed the subrogation order of Judge Harding and refused to release the funds until after the appeal was determined.
The trial court dismissed Counts II and III of the Amended Complaint without leave to amend. Count I of the Amended Complaint was transferred to County Court based on the amount claimed under Count I.
We affirm the dismissal of Count III. The refusal of Maryland Casualty was at most a breach of the verbal agreement between the parties. At no time did Maryland Casualty attempt to exercise exclusive ownership of the funds in the account. At all times relevant the funds were in the joint possession of the parties.
We reverse the dismissal of Count II. Whitley’s Count II alleged that Maryland Casualty was to release the funds upon Judge Harding’s ruling. As phrased, Count II does not state a cause of action in light of Maryland Casualty’s appeal of Judge Harding’s ruling. Judge Harding’s ruling is not final until after the appeal process is exhausted. Cicero v. Paradis, 184 So. 2d 212, reh. den. (Fla. 2nd DCA 1966). We are of the opinion, however, that it would be more appropriate to allow Whitley to allege with more specificity the time that Maryland Casualty agreed to release the funds. See Fouts v. Marguies, 98 So. 2d 394 (Fla. 3rd DCA 1957), Richards v. West, 110 So. 2d 698 (Fla. 1st DCA 1959), Lopez v. LaFuente, 343 So. 2d 930 (Fla. 3rd DCA 1977), Rule 1.190, Fla.R.Civ.P. Affirmed in part and reversed in part and remanded for proceedings not inconsistent with this opinion.
ROBERT P. SMITH, Jr., Acting C. J., and MASON, ERNEST E., Associate Judge, concur.
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GEICO Fin. Servs., Inc. v. Kramer, 575 So. 2d 1345 (Fla. 4th DCA 1991)…ss, once started, has been completed. Porter Lumber Co. v. Tim Kris, Inc., 530 So. 2d 398, 399 (Fla. 4th DCA 1988); McCuiston v. State, 507 So. 2d 1185, 1186 (Fla. 2d DCA 1987), approved, 534 So. 2d 1144 (Fla.1988); Whitley v. Maryland Casualty Co., 376 So. 2d 476, 477 (Fla. 1st DCA 1979); Cicero v. Paradis, 184 So. 2d 212, 214 (Fla. 2d DCA 1966). Appellee in the instant case started the appellate process by filing a notice of appeal of the Findings and Final Judgment and this case is pending in this court. K…
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Porter Lumber Co., Inc. v. TIM Kris, Inc., 530 So. 2d 398 (Fla. 4th DCA 1988)…he clerk of court. The appellate process was timely invoked and therefore the judgment will not be final until it is completed, when the mandate is issued. McCuiston v. State, 507 So. 2d 1185 (Fla. 2d DCA 1987); Whitley v. Maryland Casualty Company, 376 So. 2d 476 (Fla. 1st DCA 1979; Cicero v. Paradis, 184 So. 2d 212 (Fla. 2d DCA 1966). We affirm the final order awarding appellant a mechanics’ lien with attorneys’ fees and costs. We reverse the order denying the motion to vacate a satisfaction of judgment, w…
Authorities Cited
- Richards v. West, 110 So. 2d 698 (Fla. 1st DCA 1959)
- Anne M. Fouts v. Margules, 98 So. 2d 394 (Fla. 3d DCA 1957)
- Cicero v. Paradis, 184 So. 2d 212 (Fla. 2d DCA 1966)
- Lopez v. la Fuente, 343 So. 2d 930 (Fla. 3d DCA 1977)