CINCINNATI INSURANCE COMPANY, PETITIONER,
v.
TED MOFFETT AND BETTY JEAN MOFFETT, HUSBAND AND WIFE, RESPONDENTS

Fla. 1st DCA | 1987-10-12
No. 87-94
MILLS and NIMMONS, JJ., concur.
513 So. 2d 1345 Florida District Court of Appeal, First District (1987) Positive Treatment
Cited by 12 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Cincinnati Insurance Company sought review of a circuit court order denying its motion to dismiss from a personal injury action where it was joined as a defendant before judgment was entered against the insured. The court held that Florida Statute § 627.7262 explicitly prohibits joining an insurer as a defendant before obtaining a judgment against the insured, and that a trial court cannot imply a remedy for noncompliance with § 627.7264 that violates the plain language of § 627.7262.


Holding

The court held that § 627.7262 explicitly requires a judgment against the insured as a condition precedent to any action against the liability insurer, and trial courts cannot ignore or amend this plain statutory language by implying a remedy for noncompliance with another statute. The power to enforce one statute does not confer authority to disregard the unambiguous requirements of another statute.


Headnotes

[1] Joinder of a liability insurance company prior to obtaining a judgment against its insured in a personal injury action violates the plain language of Section 627.7262, Fl…

[2] A trial court cannot ignore the unambiguous language of one statute by implying a remedy to enforce another statute.

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Key Quotes

“Section 627.7262 explicitly states as a "condition precedent to the ... maintenance of a cause of action against a liability insurer by a person not an insured under [the] terms of the liability insurance contract that such person shall first obtain a judgment against a person who is an insured under the terms of such policy."”

Establishes the plain statutory requirement that judgment against the insured must precede any action against the insurer

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Facts & Procedural History

Respondents requested insurance coverage information from Cincinnati pursuant to § 627.7264, which requires liability insurers to furnish details with…

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Opinion of the Court
ERVIN, Judge.

ERVIN, Judge.

Cincinnati Insurance Company (Cincinnati) has filed a petition for writ of common law certiorari, seeking review of a non-final order of the circuit court which denies Cincinnati’s motion to dismiss a complaint that joins it in a personal injury action. Finding that joinder of Cincinnati prior to obtaining a judgment against an insured violates Section 627.7262, Florida Statutes (1985), we issue the writ.

Respondents filed a request for information with petitioner pursuant to Section 627.7264, Florida Statutes (1985), providing that a liability insurance company shall furnish certain information to a claimant concerning the details of an insured’s coverage within thirty days of a request. Cincinnati failed to comply with the request until thirty-two days thereafter, when the information was dispatched by the petitioner to respondent’s attorney. Approximately one year later, respondents filed their personal injury action against both the insured and Cincinnati, and the latter moved to dismiss the action as to it, arguing that section 627.7262 prohibits joinder of an insurance company before a plaintiff receives “a judgment against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.” The court denied the motion to dismiss, linking section 627.7262 with section 627.7264, the latter requiring a liability insurer to provide a statement setting forth the details of an insurance policy within thirty days from a written request of a claimant with regard to insurance. The court concluded in its order that “when a carrier fails to comply with the Florida Statute, 627.7264, it waives its right not to be joined as a party defendant....”

Initially we observe that a writ of common law certiorari is the appropriate remedy for a liability insurance company seeking to bar its joinder in a personal injury action before the entry of a final judgment, as required by section 627.7262. Canadian Home Insurance Co. v. Norris, 471 So. 2d 217 (Fla. 4th DCA 1985). In so saying, we also acknowledge that trial courts have the power to imply an appropriate remedy that may be necessary to secure the exercise of a right or duty imposed by statute — such as that in section 627.7264. 49 Fla.Jur.2d Statutes § 228 (1984). In our judgment, the power to imply a remedy necessary to enforce one statute does not, however, confer the power to ignore the plain meaning of another statute. A paramount rule of statutory construction is that “[wjhere the language of a statute is so plain and unambiguous as to fix the legislative intent and leave no room for construction, admitting of but one meaning, courts may not depart from the plain language employed by the legislature.” 49 Fla.Jur.2d Statutes § 121 (1984).

Section 627.7262 explicitly states as a “condition precedent to the ... maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a judgment against a person who is an insured under the terms of such policy....” While a trial court has the authority to compel a recalcitrant party to obey a statute, and to impose appropriate sanctions for the party’s failure to comply, it does not have the power to ignore or amend another statute in its creation of an implied remedy. The trial court’s consideration in pari materia of sections 627.7262 and 627.7264 ignores the unambiguous language of section 627.7262, forbidding joinder of an insurer prior to judgment, and therefore is a departure from the essential requirements of law.

The petition for writ of common law certiorari is GRANTED and the order denying Cincinnati’s motion to dismiss is QUASHED.

MILLS and NIMMONS, JJ., concur.


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Citator

Cited By

  • Quintana v. The Honorable Frederick N. Barad, 528 So. 2d 1300 (Fla. 3d DCA 1988)
    …. Ins. Co. v. Spreadbury, 524 So. 2d 1167 (Fla. 2d DCA 1988) (§ 627.7262 shields insurer from joinder in action maintained by third party even where insurer fails to comply with disclosure requirements in § 627.7264); Cincinnati Ins. Co. v. Moffett, 513 So. 2d 1345 (Fla. 1st DCA 1987) (same). .Petitioner offered the insurance agent’s deposition and a transmittal letter in support of his contention that the insurer's agent had notice of the cause of action and failed to defend the insured. Thus, the insurer ha…
  • Universal Sec. Ins. Co., Inc. v. Spreadbury, 524 So. 2d 1167 (Fla. 2d DCA 1988)
    …n to dismiss. Notwithstanding the customary inability of a defendant to achieve appellate relief from an order denying a motion to dismiss, the present matter marks an exception to the rule; we have jurisdiction. Cincinnati Insurance Co. v. Moffett, 513 So. 2d 1345 [*1168] (Fla. 1st DCA 1987); Canadian Home Insurance Co. v. Norris, 471 So. 2d 217 (Fla. 4th DCA 1985). For the reasons stated below, we grant the petition, quash the trial court’s order, and remand with the direction that Universal Security’s motio…
  • Lantana Ins., Ltd. v. Thornton, 118 So. 3d 250 (Fla. 3d DCA 2013)
    …rari was appropriate to review an order denying a motion to dismiss a complaint where the conditions precedent to accrual of a cause of action set forth in the predecessor to section 627.4136 had not been met); accord Cincinnati Ins. Co. v. Moffett, 513 So. 2d 1345, 1346 (Fla. 1st DCA 1987). It is undisputed that Abdujalalova and her husband have not obtained a settlement with or verdiet against Thornton. They therefore have no beneficial interest in Thornton’s policy with Lantana and no cause of action again…

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