NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, AND FIDELITY AND DEPOSIT COMPANY OF MARYLAND, APPELLANTS,
v.
SOUTHEAST BANK, N.A., APPELLEE

Fla. 3d DCA | 1985-10-15
Nos. 85-181, 85-450
Before HUBBART, FERGUSON, and JORGENSON, JJ.
476 So. 2d 766 Florida District Court of Appeal, Third District (1985) Negative Treatment
Cited by 15 cases

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Synopsis

National Union and Fidelity, insurers for a bank involved in a derivative action over losses from mishandled foreign check collections, appealed the dismissal of their third-party complaints seeking subrogation against a correspondent bank. The court affirmed, holding that subrogation rights do not arise until judgment or payment occurs and cannot be declared prospectively.


Holding

Subrogation rights do not arise until judgment is entered or payment is made, and insurers cannot declare such rights prospectively. The insurers cannot accomplish indirectly through declaratory judgment what they cannot do directly, and policy considerations against premature subrogation claims apply equally to declaratory judgment actions.


Headnotes

[1] A right to subrogation does not arise until judgment is entered or payment has been made.

[2] Subrogation rights cannot be declared in the absence of a showing that the primary actions have been settled or judgments have been entered for the insured.

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Key Quotes

“A right to subrogation does not arise until judgment is entered or payment has been made.”

Establishes the foundational principle that subrogation rights are not present until the underlying claim is resolved

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Facts & Procedural History

A stockholder brought a derivative action against Hemisphere National Bank alleging negligent handling of foreign check accounts causing losses exceed…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

National Union Fire Insurance Company of Pittsburgh, Pennsylvania (National Union) and Fidelity and Deposit Company of Maryland (Fidelity) appeal from a final order dismissing their second amended third-party complaints for lack of jurisdiction. We affirm.

A stockholder of Hemisphere National Bank (Hemisphere) brought a derivative action against Hemisphere alleging that certain officers of the bank had negligently handled accounts involving the collection of foreign checks and that, as a result, Hemisphere had suffered a loss in excess of $900,000. National Union, which had issued a “Directors and Officers Liability and Company Reimbursement Policy” to Hemisphere, was joined as a defendant. As a consequence of the stockholder's de rivative action, Hemisphere commenced a separate action against Fidelity on a banker’s blanket bond policy. The gist of Hemisphere’s. action against Fidelity was that the wrongful acts committed by certain officers and directors of the bank created a loss covered by the policy. These two cases were consolidated in January of 1984. Thereafter, Fidelity and National Union filed third-party complaints, which were based on subrogation theories, seeking to hold Southeast Bank, N.A., (Southeast) (a correspondent bank for Hemisphere) and other third-party defendants liable in the event that Fidelity or National Union were held liable to Hemisphere. Relying on this court’s decision in Allstate Insurance Co. v. Metropolitan Dade County, 436 So. 2d 976 (Fla. 3d DCA 1983), rev. denied, 447 So. 2d 885 (Fla.1984), the trial court granted Southeast’s motion to dismiss the amended complaints of Fidelity and National Union. No appeal was taken from that order. Thereafter, National Union and Fidelity requested and received the permission of the trial court to amend their third-party complaints in order to add actions for declaratory relief pursuant to section 86.011, Florida Statutes (1983). These actions were also based on theories of subrogation. The trial court granted Southeast’s motions to dismiss the second amended third-party complaints. This appeal followed, and we affirm.

A right to subrogation does not arise until judgment is entered or payment has been made. See Quinones v. Florida Farm Bureau Mutual Insurance Co., 366 So. 2d 854, 855 (Fla. 3d DCA), cert. denied, 376 So. 2d 71 (Fla.1979); Allstate Insurance Co. v. Metropolitan Dade County, 436 So. 2d at 980. Whether National Union and Fidelity will have causes of action against Southeast depends on the outcome of the cases presently before the trial court. They are not entitled to have subrogation rights declared unless they can make a showing, which amounts to a condition precedent to any subrogation action, that either the primary actions have been settled or judgments have been entered for their insured. Their concern that the statute of limitations may run on their, potential subrogation claims against Southeast has been addressed by this court in Allstate. The policy considerations which underpin Allstate are equally as valid within the context of a declaratory judgment action,' and the appellants may not do indirectly what they concede they may not do directly. We, therefore, adhere to Allstate and affirm the trial court’s order. Affirmed.


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Citator

Cited By

  • …d to dismiss the complaint on grounds that The Fund had not yet made any payment to its insured and that the action was premature. Punta Gorda Isles relied upon decisions from the Third District. National Union Fire Ins. Co. v. Southeast Bank, N.A., 476 So. 2d 766 (Fla. 3d DCA 1985); Quinones v. Fla. Farm Bureau Mut. Ins. Co., 366 So. 2d 854 (Fla. 3d DCA 1979). The lower court agreed that the subrogation claim was premature because The Fund had not yet entered into any settlement or payment of a claim and, th…
  • Gortz v. Lytal, 769 So. 2d 484 (Fla. 4th DCA 2000)
    …977). Lytal Reiter argues that Proskauer Rose’s subrogation claim may not be brought until a judgment has been entered or payment made by Proskauer Rose. That argument is consistent with National Union Fire Ins. Co. of Pittsburgh v. Southeast Bank, 476 So. 2d 766, 767 (Fla. 3d DCA 1985), where the Third District held that “[a] right to subrogation does not arise until judgment is entered or payment has been made.” Whether subrogation applies depends on the outcome of the cases before the trial court. Id.; se…
  • Allstate Ins. Co. v. Basil Theodotou, M.D., 171 So. 3d 163 (Fla. 5th DCA 2015)
    …2d 1145, 1147 (Fla. 4th DCA 2002) (“When an initial tortfeasor is held liable for the entirety of the plaintiffs damages, his remedy is an action for equitable subrogation against the subsequent tortfeasors.”); Nat’l Union Fire Ins. Co. v. Se. Bank, 476 So. 2d 766, 767 (Fla. 3d DCA 1985) (“A right to subrogation does not arise until judgment is entered or payment has been made.”). The cases cited by Appellees, on the other hand, are all distinguishable. Most involve situations where the party seeking equitab…

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