LUMBERMENS MUTUAL CASUALTY COMPANY, APPELLANT,
v.
FOREMOST INSURANCE COMPANY, APPELLEE
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Lumbermens Mutual Casualty Company sought to recover amounts paid in settlement and attorney fees from Foremost Insurance Company as an additional insurer for Watsco, Inc. The court affirmed dismissal of the complaint, holding that Lumbermens failed to preserve its rights against Foremost and could not recover attorney fees incurred on its own behalf.
The court held that Lumbermens waived any claim against Foremost by failing to obtain an identifiable agreement preserving its rights, and could not recover under the doctrine of equitable subrogation because no judgment was ever entered against the insured. Additionally, attorney fees and costs incurred by Lumbermens on its own behalf could not be recovered from Foremost.
[1] An insurer waives any claim for indemnity, contribution, or equitable subrogation against another insurer by failing to obtain an identifiable agreement preserving such a…
[2] Under the doctrine of equitable subrogation, an insurer may only recover amounts paid on behalf of a judgment rendered against its insured.
Previewing 2 of 4 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“Lumbermens, in negotiating and settling the claim against their insured, failed to obtain from Foremost an identifiable agreement, either oral or written, preserving a cause of action against Foremost for either indemnity, contribution and/or equitable subrogation and, by its failure to do so, it has waived any claim thereto.”
Establishes that an insurer must obtain an identifiable agreement to preserve rights against a co-insurer or waive the claim entirely.
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Join FLexlaw to unlock all legal intelligenceHeat Exchange Inc. sued Watsco, Inc., and Lumbermens Mutual Casualty Company, an additional insurance carrier for Watsco, settled the claim. Lumbermen…
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PER CURIAM.
Subsequent to our opinion reported as Argonaut Ins. Co. v. Maryland Casualty Company, 372 So. 2d 960 (Fla. 3rd DCA 1979), Lumbermens Mutual Casualty Company, an additional insurance carrier for Watsco, Inc., filed a complaint against Foremost Insurance Company seeking recovery of the amount paid in settlement and attorneys fees and costs incurred in the settlement of the plaintiff’s claim in the original lawsuit brought by Heat Exchange Inc., against Watsco, Inc.1
The original complaint was dismissed for failure to state a cause of action and an amended complaint was likewise dismissed for failure to state a cause of action.
An appeal from this ultimate final order of dismissal of the amended complaint2 is now before us. We affirm.
Lumbermens, in negotiating and settling the claim against their insured, failed to obtain from Foremost an identifiable agreement, either oral or written, preserving a cause of action against Foremost for either indemnity, contribution and/or equitable subrogation and, by its failure to do so, it has waived any claim thereto. Lehman-Eastern Auto Rentals, Inc. v. Brooks, 370 So. 2d 14 (Fla. 3d DCA 1979). Furthermore, under the doctrine of equitable subrogation, Lumbermens could only recover that amount it paid on behalf of a judgment rendered against its insured. General Accident Fire & Life Assurance Corporation, Ltd. v. American Casualty Company of Reading, Pa., 390 So. 2d 761 (Fla. 3d DCA 1980); Ranger Insurance Company v. Travelers Indemnity Company, 389 So. 2d 272 (Fla. 1st DCA 1980). No such judgment was ever entered. Thus Lumber-mens is left to a cause of action sounding in bad faith. The amended complaint, filed herein, fails to allege specifically those ultimate facts which would support such an action. See & compare: General Accident Fire & Life Assurance Corporation, Ltd. v. American Casualty Company of Reading, Pa., supra; Ranger Insurance Company v. Travelers Indemnity Company, supra. As to the attorneys fees and costs Lumbermens seeks to recover herein, we find they are fees and costs incurred by Lumbermens on its own behalf and were not those rendered on behalf of its insured. Under the holding of Argonaut Insurance Company v. Maryland Casualty Company, 372 So. 2d 960 (Fla. 3d DCA 1979), these fees and cost cannot be recovered from Foremost.
Therefore, the final order here under review be and the same is hereby affirmed.
Affirmed.
. Neither Lumbermens nor Foremost were named as parties defendant in this original action by Heat Exchange v. Watsco.
. Lumbermens attempted to file a second amended complaint but, this was stricken for failure to comply with the applicable rules of civil procedure and we find no error. Fla.R. Civ.P. 1.190(a).
SCHWARTZ, Chief Judge
(dissenting).
Since I believe that the amended complaint stated a cause of action in equitable subrogation, see Rebozo v. Royal Indemnity Co., 369 So. 2d 644 (Fla. 3d DCA 1979), cert. denied, 379 So. 2d 209 (Fla.1979); American Home Assurance Co. v. City of Opa Locka, 368 So. 2d 416 (Fla. 3d DCA 1979), I respectfully dissent.
Cases With Similar Vibessemantic neighbors from the corpus
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United States Auto. Ass'n v. The Hartford Ins. Co., 468 So. 2d 545 (Fla. 5th DCA 1985)…attorney’s fees incurred in the defense of a claim indemnified against are part of the damages and allowable, but attorney’s fees incurred in establishing the right to indemnification are not allowable. Lumbermens Mut. Cas. Co. v. Foremost Ins. Co., 425 So. 2d 1158 (Fla. 3d DCA 1983); American & Foreign Ins. v. Avis Rent-A-Car, 401 So. 2d 855 (Fla. 1st DCA 1981); General Ace. Fire & Life v. American Cas. Co., 390 So. 2d 761 (Fla. 3d DCA 1980); American Home Assur. Co. v. City of Opa Locka, 368 So. 2d 416 (Fla.…
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Airmanship, Inc. v. United States Aviation Underwriters, Inc., 559 So. 2d 89 (Fla. 3d DCA 1990)…hen it neither obtains an agreement preserving its right to indemnification, nor in any way disclaims its liability. Lehman-Eastern Auto Rentals v. Brooks, 370 So. 2d 14 (Fla. 3d DCA 1979); see also Lumbermens Mut. Casualty Co. v. Foremost Ins. Co., 425 So. 2d 1158 (Fla. 3d DCA 1983). Although AVEMCO did not obtain a subrogation agreement with USAU, it repeatedly denied liability and demanded that USAU defend Tasso. Because USAU failed to respond, AVEMCO had no alternative but to recognize that Brons’ widow wo…
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Pa. Lumbermens Mut. Ins. Co. v. Ind. Lumbermens Mut. Ins. Co., 43 So. 3d 182 (Fla. 4th DCA 2010)…defense costs in favor of someone who has the independent contractual duty to pay all such expenses”) (citing Argonaut Ins. Co. v. Md. Cas. Co., 372 So. 2d 960, 964 (Fla. 3d DCA 1979));1 see also Lumbermens Mut. Cas. [*187] Co. v. Foremost Ins. Co., 425 So. 2d 1158, 1160 (Fla. 3d DCA 1983) (“As to the attorneys fees and costs Lumbermens seeks to recover herein, we find they are fees and costs incurred by Lumbermens on its own behalf and were not those rendered on behalf of its insured); see also Am. Cas. Co. o…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Am. Home Assurance Co. v. City OF OPA Locka, 368 So. 2d 416 (Fla. 3d DCA 1979)
- Ranger Ins. Co. v. Travelers Indem. Co., 389 So. 2d 272 (Fla. 1st DCA 1980)
- Argonaut Ins. Co. v. Md. Cas. Co., 372 So. 2d 960 (Fla. 3d DCA 1979)
- Green v. Green, 390 So. 2d 761 (Fla. 3d DCA 1980)
- Charles "Bebe" Rebozo v. Royal Indem. Co. & Baldwin Ins. Agency, Inc., 369 So. 2d 644 (Fla. 3d DCA 1979)
- Lehman-Eastern Auto Rentals, Inc. v. Brooks, 370 So. 2d 14 (Fla. 3d DCA 1979)