BRICKELL BAY CONDOMINIUM ASSOCIATION, INC., APPELLANT,
v.
JOHN FORTE, MICHAEL FORTE AND BRICKELL BAY CLUB, INC., APPELLEES
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The court held that the trial court abused its discretion in denying the Association's motion to intervene because the Association, as a partial assignee of the cause of action, was a real party in interest whose interests could not be adequately protected by the developers.
[1] A party with a partial assignment of a cause of action is a real party in interest and is entitled to intervene in litigation concerning that cause of action.
[2] Intervention may be granted when the intervenor's interest is not adequately protected by the existing parties, especially when the existing party has a limited interest…
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Join FLexlaw to unlock all legal intelligenceThe Brickell Bay Club Condominium Association, Inc. (Association) sought to intervene in a lawsuit filed by the condominium developers against Aetna D…
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DANIEL S. PEARSON, Judge.
The appellant, Brickell Bay Club Condominium Association, Inc. (the Association), whose members are the unit owners of the Brickell Bay Club Condominium, was denied the right to intervene in an action by the developers of the condominium against Aetna Dry wall Contractors, Inc. (Aetna), seeking damages because of Aetna’s negligent performance of construction of the condominium. The Association’s asserted interest in the pending litigation arises from an assignment from the developers, which provides in pertinent part:
“2. The Assignor does hereby assign, set over and transfer unto the Assignee, the benefit of all of Assignor’s right, title and interest in and to all bonds and warranties (express or implied) of every kind, character and description furnished to and running in favor of the Assignor by all of the contractors, sub-contractors and materialmen who furnished and/or performed work, labor, services and materials in connection with the construction of the Brickell Bay Club Condominium and all of its appurtenances, except as hereinafter provided.
“3. The Assignor has advised the As-signee of the following:
“(a) That there is presently pending in the Circuit Court of Dade County, Florida, certain litigation between Assignor and materialmen, suppliers and subcontractors who performed work, labor services on and/or furnished materials to the Brickell Bay Club Condominium.
“(b) That such litigation was initiated in each instance by the sub-contractors and materialmen.
“(c) That the Assignor has and/or will, in defending such actions, assert affirmative defenses and/or counterclaims against the claimants therein.
“(b) Any proceeds obtained as a result of such pending litigation will first be used to offset any claims within such litigation by any party against [the developers], or to satisfy any judgments which such party may have against [the developers] and the balance, after all such offsets, to the party against whom the judgment was entered or any other party to such litigation shall be remitted to Assignee, without claim by Assignor, except to the extent of attorneys’ fees and costs expended by Assignor to obtain such result.”
We hold that the trial court abused its discretion in denying intervention, see Coral Bay Property Owner’s Association v. City of Coral Gables, 305 So. 2d 853 (Fla. 3d DCA 1975), because (1) the status of the Association as a partial and potentially substantial assignee of the cause of action being sued on by the developers is that of real party in interest in the pending litigation, a status clearly sufficient to justify intervention, see W. Klang & Son, Inc. v. Milar Galleries, Inc., 328 So. 2d 510 (Fla. 3d DCA 1976); Blue Cross of Florida, Inc. v. O’Donnell, 230 So. 2d 706 (Fla. 3d DCA 1970); compare Faircloth v. Mr. Boston Distiller Corporation, 245 So. 2d 240 (Fla.1970); Oster v. Cay Construction Company, 204 So. 2d 539 (Fla. 4th DCA 1967) (mere indirect interest not sufficient for intervention); (2) as is evident from the assignment, the developers’ only real interest in the outcome of their action against Aetna is to recover damages sufficient to offset a judgment obtained against them on a promissory note by Aet-na, whereas, by contrast, the interests of the Association, the entity which now bears the responsibility to repair the alleged defective construction, can only be adequately protected by as full and complete recovery against Aetna as is possible for it to obtain, Coral Bay Property Owner’s Association v. City of Coral Gables, supra (proposed inter-venor’s interest not adequately protected by party with limited interest); see Miracle House Corporation v. Haige, 96 So. 2d 417 (Fla.1957) (proposed intervenor’s interest not adequately protected by disinterested party); (3) not only is the discrete interest of the developers in the outcome of the litigation inadequate to fully protect the rights of the Association, but the admitted prior litigious conflicts between the developers and the Association enhance the Association’s need for its own representation in the pending action; (4) the Association has abandoned any claim for relief distinct from that sought by the developers in the main action and concedes that its intervention must be subordinate to and in recognition of the main proceeding, the conduct of which can be presumably controlled by other orders of the trial court; and (5) while the motion to intervene was filed several years after the commencement of the main action, but only an approximate year after the assignment to the Association, the main action is still far from the eve of trial, and intervention will not disrupt the proceedings or disadvantage any party, as is apparently recognized by Aetna, which, although presumably the party most affected, has not opposed the Association’s intervention.
Reversed and remanded with directions to grant the Association’s motion to intervene.
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Southland Life Ins. Co. v. Abelove, 556 So. 2d 805 (Fla. 5th DCA 1990)…s that Jennifer may concentrate her efforts on an award for future damages rather than dilute them by including past, insurance-paid, medical costs. As Southland notes, intervention was allowed for a party in Brickell Bay Condominium, Inc. v. Forte, 410 So. 2d 522, 524 (Fla. 3d DCA 1982), so that it could assist in bringing about the full recovery which alone would adequately protect its interest. As further support for its motion to intervene, Southland cites to Blue Cross of Florida, Inc. v. O’Donnell, 230…
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BAY Park Towers Condo. Ass'n, Inc. v. H.J. Ross & Assocs., 503 So. 2d 1333 (Fla. 3d DCA 1987)…common elements would not be adequately protected in the pending suit. Specifically, the argument is that the individual unit owners have no direct interest in damages caused to the common elements. In Brickell Bay Condominium Ass’n, Inc. v. Forte, 410 So. 2d 522 (Fla. 3d DCA 1982), we held that the trial court abused its discretion in denying the association’s application to intervene where (1) the association had a direct interest in the outcome of the litigation and (2) the interests of the association wo…
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Union Cent. Life Ins. Co. v. Carlisle, 566 So. 2d 1335 (Fla. 4th DCA 1990)…a.1986).2 On the other hand, there are many other cases which clearly indicate that a subrogation clause in a personal injury suit is not the only appropriate occasion for intervention. See, e.g., Brickell Bay Condominium Association, Inc. v. Forte, 410 So. 2d 522 (Fla. 3d DCA 1982); Morgareidge v. Howey, supra. Nonetheless, the question of subrogation is not irrelevant sub judice because, while the policy in question does not contain a classic subrogation clause, and the magic word “subrogation” never appea…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. Bd. OF Pub. Instruction FOR Broward Cnty., 96 So. 2d 417 (Fla. 1957)
- Faircloth v. MR. Boston Distiller Corp. & Hartley & Parker, Inc., 245 So. 2d 240 (Fla. 1970)
- Bernstein v. Goodbody & Co., 204 So. 2d 539 (Fla. 3d DCA 1967)
- Coral BAY Prop. Owners Ass'n v. City OF Coral Gables, 305 So. 2d 853 (Fla. 3d DCA 1974)
- Morrison Assurance Co., Inc. v. Polak, 230 So. 2d 706 (Fla. 3d DCA 1970)
- Blue Cross OF Fla., Inc. v. O'Donnell, 230 So. 2d 706 (Fla. 3d DCA 1970)
- W. Klang & SON, Inc. v. Milar Galleries, Inc., 328 So. 2d 510 (Fla. 3d DCA 1976)