RICHARD BERTRAM & COMPANY, APPELLANT,
v.
SUN BANK/MIAMI, N.A. AND YEGEN ASSOCIATES, INC., APPELLEES
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Richard Bertram & Company appealed a judgment on the pleadings dismissing its indemnification and fraud claims against Sun Bank/Miami and Yegen Associates. The court affirmed the dismissal, holding that the plaintiff's losses from a fraudulent transfer judgment were not covered by the indemnification agreement and that the claim was not frivolous enough to warrant attorney's fees.
The court held that Bertram had no cause of action for indemnification because the bankruptcy judgment did not result from Sun Bank's or Yegen's removal of the yacht but rather from Bertram's own prior participation in the fraudulent transfer. The court also held that while the claim was weak, it was not frivolous and therefore did not warrant attorney's fees.
[1] An indemnification agreement only covers actions that result from the specific events enumerated within the agreement.
[2] A claim for common law indemnity or fraud requires a basis distinct from the actions of the party against whom indemnity is sought.
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“The indemnification agreement between the parties covers only actions "resulting from" Sun Bank's or Yegen's removal of a certain yacht from the plaintiff's premises. The plaintiff, however, seeks to recover indemnification on a final judgment entered against it in the bankruptcy court because the plaintiff accepted a fraudulent transfer of funds belonging to a bankrupt corporation when the plaintiff sold the yacht to the president of the said corporation.”
Establishes that the indemnification agreement's scope was limited to consequences of the defendants' yacht removal, not the plaintiff's prior fraudulent conduct.
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Join FLexlaw to unlock all legal intelligenceRichard Bertram & Company sold a yacht to the president of a bankrupt corporation. The sale involved a fraudulent transfer of the corporation's funds,…
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PER CURIAM.
This is an appeal from a final judgment on the pleadings in favor of the defendants Sun Bank/Miami, N.A. and Yegen Associates, Inc. in an action sounding in indemnification and fraud; this is also a cross appeal from the trial court’s order denying the defendants’ application for attorney’s fees under Section 57.105, Florida Statutes (1985). We affirm.
First, we conclude that the plaintiff Richard Bertram & Company has no cause of action for indemnification or fraud against the defendants. The indemnification agreement between the parties covers only actions “resulting from” Sun Bank’s or Yegen’s removal of a certain yacht from the plaintiff’s premises. The plaintiff, however, seeks to recover indemnification on a final judgment entered against it in the bankruptcy court because the plaintiff accepted a fraudulent transfer of funds belonging to a bankrupt corporation when the plaintiff sold the yacht to the president of the said corporation. This judgment is not covered by the indemnification agreement because it did not result from Sun Bank’s or Yegen's subsequent removal of the yacht — but was based entirely on the plaintiff’s prior participation in a fraudulent transfer of the bankrupt corporation’s funds. Further, the plaintiff has utterly no cause of action against the defendants for common law indemnity or fraud. See Houdaille Indus. v. Edwards, 374 So. 2d 490, 494 (Fla.1979); American Int’l Land Corp. v. Hanna, 323 So. 2d 567 (Fla.1975); Miami Elevator Co. v. LaConcha Motor Inn, 462 So. 2d 511 (Fla. 3d DCA 1985); Roberts v. Rivera, 458 So. 2d 786, 788-89 (Fla. 5th DCA 1984).
Second, the action instituted below approached, but did not constitute, a frivolous claim, as the plaintiff had a viable argument, albeit a weak one, that its loss was covered by the indemnity agreement because said loss would have been less had there been no repossession. Although the argument has no merit because the repossession was a perfectly lawful repossession and did not expose the plaintiff to any liability whatever, it is not, in our view, a frivolous position. This being so, the defendants were not entitled to attorney’s fees under Section 57.105, Florida Statutes (1985). See Whitten v. Progressive Casualty Ins. Co., 410 So. 2d 501, 505 (Fla.1982); Atlantic Nat'l Bank of Fla. v. Tworoger, 448 So. 2d 616 (Fla. 3d DCA 1984); Cisneros v. Tarafa, 418 So. 2d 338 (Fla. 3d DCA 1982).
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)
- Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979)
- Am. Int'l Land Corp. v. Hanna, 323 So. 2d 567 (Fla. 1975)
- Atl. Nat'l Bank OF Fla. v. Tworoger, 448 So. 2d 616 (Fla. 3d DCA 1984)
- Roberts v. Rivera, 458 So. 2d 786 (Fla. 5th DCA 1984)
- Miami Elevator Co. v. LA Concha Motor INN, 462 So. 2d 511 (Fla. 3d DCA 1985)
- State v. Nova, 462 So. 2d 511 (Fla. 3d DCA 1985)
- Cisneros v. Tarafa, 418 So. 2d 338 (Fla. 3d DCA 1982)