INDUSTRIALES NICARAGUENSES CHIPIRUL, S.A., APPELLANT,
v.
SWITZERLAND GENERAL INSURANCE CORPORATION OF NEW YORK, APPELLEE
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An insured party appeals a summary judgment in favor of an insurance company that denied coverage for a cargo loss, claiming the insured impaired the insurer's subrogation rights by failing to sue the shipping line. The court reversed, holding that mere failure to sue does not impair subrogation rights, and an insurer that denies coverage cannot assert unasserted subrogation rights.
The insured did not impair the insurer's subrogation rights for two reasons: (1) mere failure to file suit, without an affirmative act by the insured, does not constitute impairment of subrogation rights; and (2) an insurer that denies coverage and makes no request for the insured to file suit cannot assert subrogation rights capable of being impaired.
[1] An insured's failure to file suit against a third-party tortfeasor, without more, does not constitute an impairment of the insurer's subrogation rights under a marine ins…
[2] An insurer cannot claim impairment of subrogation rights when it denied coverage under the policy and made no request for the insured to pursue a claim against a third pa…
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 failure to file suit against the shipping line, without more, was not an affirmative act of the insured which constituted an impairment of subrogation rights”
Establishes that passive failure to sue differs from active impairment of subrogation rights
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Join FLexlaw to unlock all legal intelligenceIndustriales Nicaragüenses shipped a cargo of peanuts to Nicaragua under a marine insurance policy issued by Switzerland General Insurance Corporation…
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PER CURIAM.
This is an appeal from a final summary judgment for the defendant insurer in an action by the plaintiff insured for recovery under a marine insurance policy for the loss of a cargo of peanuts shipped to Nicaragua. The trial court entered final summary judgment for the defendant insurer Switzerland General Insurance Corporation of New York on the sole ground that the plaintiff insured Industriales Nicaragüens-es had impaired the insurer’s subrogation rights in violation of clause 33 of the marine insurance policy by failing to file suit against a potential third-party tortfeasor, the shipping line, for the loss of the cargo of peanuts. The plaintiff insured appeals.
We conclude that the plaintiff insured did not impair the subrogation rights of the defendant insurer under the subject marine insurance policy for two reasons.
First, the failure to file suit against the shipping line, without more, was not an affirmative act of the insured which constituted an impairment of subrogation rights. See, e.g., Insurance Co. of North America v. Newtowne Manufacturing Co., 187 F. 2d 675, 684 (1st Cir.1951) (Magruder, C.J.); Schmer v. Hawkeye-Security Insurance Co., 194 Neb. 94, 230 N.W. 2d 216, 218 (1975).
Second, the insurer denied coverage under the policy, made no request of the insured to file suit against the shipping line, and therefore, asserted no subrogation rights which were capable of being impaired. See, e.g., Meredith v. The Ionian Trader, 279 F. 2d 471 (2d Cir.1960); Insurance Co. of North America v. Newtowne Manufacturing Co., supra, at 685; Fireman’s Fund Insurance Co. v. Rojas, 409 So. 2d 1166 (Fla. 3d DCA 1982); Indiana Insurance Co. v. Collins, 359 So. 2d 916 (Fla. 3d DCA 1978).
The final summary judgment under review is reversed and the cause is remanded for further proceedings.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Ins. Co. of N. Am. v. Newtowne MFG. Co., 187 F.2d 675 (1st Cir. 1951)
- Ind. Ins. Co. v. Collins, 359 So. 2d 916 (Fla. 3d DCA 1978)
- Fireman's Fund Ins. Co. v. Ada Rojas, 409 So. 2d 1166 (Fla. 3d DCA 1982)
- Meredith v. THE Ionian Trader, 279 F.2d 471 (2d Cir. 1960)