H. PAUL HETT, APPELLANT,
v.
MADISON MUTUAL INSURANCE COMPANY, INC., CATHERINE KOROBEY, AND WILLIAM KOROBEY, APPELLEES
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A negligence plaintiff who was incarcerated appealed the dismissal with prejudice of his auto accident negligence suit against an insurance company. The court affirmed the dismissal as improper joinder but reversed the prejudicial dismissal because no statute of limitations had accrued against the insurer under Florida law.
The trial court properly dismissed the action as to Madison Mutual for improper joinder under section 627.7262(1), Florida Statutes, since Hett had not first obtained a settlement or judgment against the insured Mr. Korobey. However, the dismissal must be without prejudice because no limitation period had commenced against the insurer, as the cause of action against an insurer does not accrue until a settlement or verdict is obtained against the insured.
[1] A cause of action against a liability insurer does not accrue until a settlement is reached or a verdict is rendered against the insured.
[2] A plaintiff must obtain a settlement or verdict against an insured before bringing an action against the liability insurer.
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Join FLexlaw to unlock all legal intelligence“a cause of action against the insurer does not accrue until a settlement is reached or a verdict is rendered against the insured”
Establishes the statutory condition precedent that triggers when an insurer's cause of action accrues
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Join FLexlaw to unlock all legal intelligenceOn November 20, 1987, H. Paul Hett was involved in an automobile accident with Catherine Korobey's vehicle, owned by William Korobey. Madison Mutual I…
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PATTERSON, Judge.
H. Paul Hett appeals from the final order dismissing his complaint against Madison Mutual Insurance Company with prejudice. Madison Mutual was not properly joined as a party in this negligence action; therefore, we affirm the dismissal of the complaint. However, we reverse the portion of the order dismissing with prejudice, since the cause of action against Madison Mutual has not yet accrued under section 627.-7262(1), Florida Statutes (1987).1
On November 20, 1987, Hett was involved in an automobile accident with a car driven by Catherine Korobey and owned by her father, William Korobey. Madison Mutual insured Mr. Korobey’s vehicle. Thereafter, Hett was incarcerated in the state prison system.
In November 1991, he filed an automobile negligence action, pro se, against the Korobeys in which he joined Madison Mutual as a defendant. Hett mailed the complaint to the Circuit Court of the Thirteenth Judicial Circuit and it was filed on November 22, 1991. Madison Mutual moved to dismiss the complaint on the grounds that the four-year statute of limitations applicable to automobile negligence actions had run and that it could not be joined in the initial action under section 627.7262(1), Florida Statutes (1987).
The trial court dismissed the action as to Madison Mutual with prejudice.
The trial court based its decision to dismiss the complaint with prejudice on the ground that the action was time barred.2 This was error since no limitation period was running with regard to Madison Mutual as a result of this accident. By its very terms, section 627.7262(1) provides that a cause of action against the insurer does not accrue until a settlement is reached or a verdict is rendered against the insured. See Lucente v. State Farm Mut. Auto. Ins. Co., 591 So. 2d 1126 (Fla. 4th DCA), review denied, 601 So. 2d 552 (Fla.1992). The dismissal was proper, however, in that Hett has not fulfilled the condition precedent of first obtaining a judgment against Mr. Korobey before bringing an action against Madison Mutual.
Therefore, we affirm the dismissal, but reverse and remand to the trial court for the entry of an order reflecting the dismissal to be without prejudice.
SCHOONOVER, A.C.J., and ALTENBERND, J., concur. . 627.7262 Nonjoinder of insurers.—
(1) It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insur-anee contract that such person shall first obtain a settlement or verdict 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 statute of limitations cannot be raised as an affirmative defense in a motion to dismiss unless the running of the statute appears on the face of the complaint or its attachments. Alexander Hamilton Corp. v. Leeson, 508 So. 2d 513 (Fla. 4th DCA 1987). That would appear to be the case here; the complaint shows that it was filed four years and two days from the date of the accident.
However, as a prison inmate, Hett enjoys the unique benefit of what is referred to as the "mailbox rule.” Under that rule, a pleading is deemed filed when the inmate turns the document over to agents of the state for processing. See Haag v. State, 591 So. 2d 614 (Fla.1992); Little v. Little, 616 So. 2d 1179 (Fla. 1st DCA 1993). In cases as such this, it is necessary for the trial court to hold an evidentiary hearing to determine if the complaint was in fact delivered by the inmate to the agents of the state within the applicable statute of limitations.
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Harley L. Vause v. BAY Med. Ctr., 687 So. 2d 258 (Fla. 1st DCA 1996)…of limitations, is not a basis for dismissal unless the complaint affirmatively and clearly shows the conclusive applicability of the defense. Alexander Hamilton Corp. v. Leeson, 508 So. 2d 513 (Fla. 4th DCA 1987); see Hett v. Madison Mut. Ins. Co., 621 So. 2d 764 (Fla. 2d DCA 1993); rev. dismissed, 632 So. 2d 1026 (Fla.), cert. denied, 511 U.S. 1133, 114 S.Ct. 2147, 128 L.Ed.2d 874 (1994). The plaintifPs complaint does not clearly show the applicability of the defense. Indeed, nowhere in the complaint is it…
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Smith v. ST. VIL, 714 So. 2d 603 (Fla. 4th DCA 1998)…insurer mistakenly furnished the trial court with an order granting dismissal with prejudice. We reverse the order insofar as it dismisses with prejudice, because the dismissal should have been without prejudice. Hett v. Madison Mut. Ins. Co., Inc., 621 So. 2d 764 (Fla. 2d DCA 1993). The specific error we are called upon to correct in this case is one which occurs regularly. These errors result, we suspect, just as the one did in this case, because the order was improperly drafted by counsel, who may have th…
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Hazen v. Allstate Ins. Co., 952 So. 2d 531 (Fla. 2d DCA 2007)…Insurer: Old and New Under the 1982 version of the nonjoinder statute, the injured third party had no right of action against the insurer under a liability policy before obtaining a judgment against the insured.4 See Hett v. Madison Mut. Ins. Co., 621 So. 2d 764, 766 (Fla. 2d DCA 1993); Home Ins. Co. of Ill. v. Sentry Ins., 461 So. 2d 1038, 1038 (Fla. 4th DCA 1985), receded from on other grounds, Hartford Accident & Indem. Co. v. U.S.C.P. Co., 515 So. 2d 998 (Fla. 4th DCA 1987). The procedural effect of the…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Thurston McCLAIN, 591 So. 2d 614 (Fla. 1992)
- Haag v. State, 591 So. 2d 614 (Fla. 1992)
- Alexander Hamilton Corp. v. Leeson, 508 So. 2d 513 (Fla. 4th DCA 1987)
- Little v. Little, 616 So. 2d 1179 (Fla. 1st DCA 1993)
- Lucente v. State Farm Mut. Auto. Ins. Co., 591 So. 2d 1126 (Fla. 4th DCA 1992)