LUCILLE RUBIO, APPELLANT,
v.
MAURICIO RUBIO, APPELLEE

Fla. 2d DCA | 1984-06-08
No. 83-2311
OTT, C.J., and RYDER, J., concur.
452 So. 2d 130 Florida District Court of Appeal, Second District (1984) Caution
Cited by 8 cases

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Holding

The court held that the husband remained obligated to pay his former wife's medical expenses under their property settlement agreement, even though she recovered some funds from a tort-feasor, because her total loss exceeded her total recovery.


Headnotes

[1] A contractual provision requiring a former husband to pay all reasonable and necessary medical expenses of the wife indefinitely is not limited by the circumstances under…

[2] A party is not entitled to subrogation against a tortfeasor until the creditor's claim against the debtor has been paid in full.

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Facts & Procedural History

A property settlement agreement required the husband to pay the wife's medical expenses indefinitely. The wife incurred significant medical expenses a…

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Opinion of the Court
GRIMES, Judge.

GRIMES, Judge.

The wife appeals from an order denying her petition seeking to require her former husband to pay certain medical bills.

The parties were divorced in 1967. A property settlement agreement incorporated into the final judgment.provided in part:

7. The Husband agrees to pay for all reasonable and necessary medical and dental and ocular and pharmaceutical expense of the Wife indefinitely, not recklessly or needlessly incurred, including her present care by her physician Dr. Saul Holtzman of St. Petersburg, Florida, or any other physician selected by the Wife. This obligation shall terminate upon remarriage of Wife.

In a prior appearance before this court in which the husband unsuccessfully sought to limit his liability under that paragraph, we said in Rubio v. Rubio, 347 So. 2d 1093 (Fla. 2d DCA 1977):

The obligation of appellee as to these expenses is clearly and unambiguously spelled out. To permit a change of this provision would be contrary to the intent of the parties as reflected in the agreement into which they voluntarily entered.

Id. at 1095.

Thereafter, in 1982 the wife was involved in an automobile accident caused solely by the negligence of the other driver. As a result she was seriously injured and was hospitalized on four separate occasions totalling approximately six and one-half weeks. Her medical expenses totalled $51,-590.69. A Blue Cross/Blue Shield policy acquired by the husband to protect himself against the obligations of paragraph 7 paid policy limits of $23,287.31. The wife’s personal PIP insurance paid policy limits of $10,000. In this proceeding the wife sought to require the husband to pay her unreimbursed medical expenses of $18,-303.38.

The negligent tortfeasor involved in the accident was a minor and had no personal financial ability to respond to the wife’s claim. However, he carried $25,000 in liability insurance which was paid in full to the wife. At the hearing on the wife’s claim against the husband, there was undisputed testimony that the value of the wife’s tort claim was actually $250,000 to $300,000. The court ultimately determined that the husband was not obligated to pay the wife the remaining $18,303.38 in un-reimbursed medical expenses. We reverse.

The agreement unequivocally requires that the husband pay for “all reasonable and necessary medical ... expense of the Wife indefinitely, not recklessly or needlessly incurred,_” There is no suggestion that the medical expenses in issue were recklessly or needlessly incurred, and there is no other limitation on the circumstances under which the wife may incur such expenses. The husband’s argument that the contract is silent with regard to medical expense incurred by reason of an accident must fail in light of the contract provision that requires the payment for all reasonable and necessary medical expenses.

Though not argued by the husband on appeal, the trial court reasoned that if the husband had paid the medical expenses, he would have a right of subrogation against the tortfeasor and would therefore be entitled to be reimbursed out of the $25,000 recovered by the wife. However, one is not entitled to be subro-gated to the right of a creditor until the claim of the creditor against the debtor has been paid in full. Whyel v. Smith, 101 Fla. 971, 134 So. 552 (1931); Furlong v. Leybourne, 138 So. 2d 352 (Fla. 3d DCA 1962). Since the value of the wife’s claim was established to be worth at least $250,000, it could hardly be said that she was paid in full by the receipt of $25,000. If the posture of the husband could be equated to that of an insurer, it would appear that the same result would ensue. According to 16 G. Couch, Cyclopedia of Insurance Law 2d § 61:64 (rev. ed. 1983):

[T]he insurer may in a given case have made the full payment required of it by its contract of insurance but this amount is not adequate to indemnify the insured in full. In such an instance, it has been held, in absence of waiver to the contrary, that no right of subrogation against the insured exists upon the part of the insurer where the insured’s actual loss exceeds the amount recovered from both the insurer and the wrongdoer, after deducting costs and expenses. In other words, the insurer has no right as against the insured where the compensation received by the insured is less than his loss.

Cf. Florida Farm Bureau Insurance Co. v. Martin, 377 So. 2d 827 (Fla. 1st DCA 1979). (The limited financial responsibility of the tortfeasor caused the insureds to settle their claim for less than its worth. The court held that the insurer had no right of subrogation because the insureds’ total recovery from both the insurer and the tortfeasor did not exceed the amount of the insureds’ loss.) Applying these principles to the instant case, the wife will not receive a double recovery because the total of the husband’s obligation and the proceeds of the settlement is still less than the value of her claim.

We reverse the order denying the wife’s claim and direct that the husband be ordered to pay the medical expenses of $18,-303.38.

OTT, C.J., and RYDER, J., concur.


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Citator

Cited By

  • Lemuel B. Magsipoc v. Larsen, 639 So. 2d 1038 (Fla. 5th DCA 1994)
    …on. REVERSED and REMANDED. PETERSON and THOMPSON, JJ., concur. . Although not addressed in the equitable distribution hearing, the Magsipocs might also have recovered funeral and burial expenses. § 768.-21(4), Fla.Stat. (1991). . Rubio v. Rubio, 452 So. 2d 130 (Fla. 2d DCA 1984); Florida Farm Bureau Ins. Co. v. Martin, 377 So. 2d 827 (Fla. 1st DCA 1979). . Ortiz v. Great Southern Fire & Casualty Insurance Co., 597 S.W. 2d 342 (Texas 1980); Lyon v. Hartford Accident & Indemnity Co., 25 Utah 2d 311, 480 P.…
  • Ifrain Monte DE OCA v. State Farm Fire & Cas. Co., 897 So. 2d 471 (Fla. 3d DCA 2004)
    …s exceeds the total amount recovered from the insurer and the tort-feasor, the insurer’s subrogation rights cannot be enforced because the insured has not been made whole.” Collins v. Wilcott, 578 So. 2d 742, 744 (Fla. 5th DCA 1991); Rubio v. Rubio, 452 So. 2d 130, 132 (Fla. 2d DCA 1984)(finding that “the insurer has no right as against the insured where the compensation received by the insured [from both the insurer and the wrongdoer] is less than his loss”)(quoting 16 G. Couch, Cyclopedia of Insurance Law 2…
  • …se "to an equitable subrogation claim. See Cleary Bros. Constr. Co. v. Upper Keys Marine Constr., Inc., 526 So. 2d 116, 117 (Fla. 3d DCA 1988) (“No rights of subrogation arise from a partial satisfaction of an obligation.”); see also Rubio v. Rubio, 452 So. 2d 130, 132 (Fla. 2d DCA 1984) (“[T]he insurer has no right as against the insured where the compensation received by the insured is less than his loss.” quoting Couch on Insurance, 2d § 61.64 (rev. ed. 1983)). This is because “the creditor cannot equitabl…

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