CASUALTY INDEMNITY EXCHANGE, APPELLANT,
v.
PENROD BROTHERS, INC., APPELLEE

Fla. 3d DCA | 1993-11-02
No. 93-104
Before JORGENSON, LEVY and GODERICH, JJ.
632 So. 2d 1046 Florida District Court of Appeal, Third District (1993) Positive Treatment
Cited by 9 cases

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Synopsis

Casualty Indemnity Exchange sought subrogation against a tenant who breached its lease obligation to purchase fire insurance, after paying the landlord's insured losses from a fire. The court held that an insurer has no right of subrogation for a tenant's breach of a contractual duty to purchase insurance, as the breach did not cause the loss and the landlord suffered no damages.


Holding

An insurer has no right of subrogation for a tenant's breach of a contractual obligation to purchase insurance. Subrogation requires that the defendant's negligence or wrongful act caused the loss; the tenant's failure to purchase insurance did not cause the fire and therefore did not cause the insurer's loss. Additionally, the landlord suffered no damages from the breach because the insurer fully covered the fire damage.


Headnotes

[1] An insurer has no right of subrogation against a tenant for the tenant's breach of a contractual duty to purchase insurance when the landlord's insurer has paid the insur…

[2] Subrogation is intended to provide relief when one party pays a legal obligation that another party should have met.

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Key Quotes

“Subrogation 'was designed to afford relief where one is required to pay a legal obligation which ought to have been met, either wholly or partially, by another.'”

Establishes the fundamental purpose of subrogation in insurance law

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Facts & Procedural History

Penrod Brothers leased property from Washington Harrison Properties under a lease requiring Penrod to purchase fire insurance. Penrod failed to obtain…

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Opinion of the Court
JORGENSON, Judge.

JORGENSON, Judge.

Casualty Indemnity Exchange appeals from an order dismissing its complaint for subrogation. We affirm.

Penrod Brothers, Inc. leased property from Washington Harrison Properties, Inc. Pursuant to its lease, Penrod was obligated to purchase fire insurance for the leased premises. Penrod did not buy insurance, but its landlord, Washington, carried fire insurance issued by Casualty on the property. A fire on the leased premises caused $150,-974.18 in insured property loss; Casualty paid that sum to the landlord, its insured.1

Casualty sued Penrod to recover the amount of the claim paid to the landlord pursuant to the insurance policy, alleging that Penrod’s breach of the lease, namely its failure to purchase insurance, caused Casualty to become subrogated to the rights of its insured. The trial court granted Penrod’s motion to dismiss; the insurer appeals.

In this case of first impression in Florida, we hold that the landlord’s insurer has no right of subrogation for the tenant’s breach of its contractual duty to purchase insurance. Subrogation “was designed to afford relief where one is required to pay a legal obligation which ought to have been met, either wholly or partially, by another.” Underwriters at Lloyds v. City of Lauder-dale Lakes, 382 So. 2d 702, 704 (Fla.1980) (citations omitted).

After payment of a loss to its insured, an insurer may be subrogated to “any right of action that the insured may have against the third person whose negligence or wrongful act caused the loss.” Indiana Ins. Co. v. Collins, 359 So. 2d 916, 917 (Fla. 3d DCA 1978) (emphasis added; citation omitted), receded from on other grounds, Holyoke Mut. Ins. Co. v. Concrete Equipment, Inc., 394 So. 2d 193,196 n. 2 (Fla. 3d DCA), rev. denied, 402 So. 2d 609 (Fla.1981).

In this case, Penrod did not contractually assume the risk of loss by fire; it only assumed the obligation of purchasing fire insurance. Had Penrod’s lease provided that Penrod would be liable to the landlord for any loss or damage to the property insured, the insurer may have been entitled to be subrogated to the rights of the landlord under the lease. See 61 Couch on Insurance M § 147 (Rev. Ed.1983).

However, the insurer based its subrogation claim only on the tenant’s failure to obtain fire insurance. Penrod’s failure to purchase insurance did not cause the fire, and therefore did not cause the insurer’s loss. See Patent Scaffolding Co. v. William Simpson Constr. Co., 256 Cal.App.2d 506, 64 Cal.Rptr. 187 (1967) (fire insurer that covered subcontractor’s loss not entitled to be equitably subrogated to subcontractor’s claim against general contractor for general contractor’s failure to procure insurance on site, as loss caused by fire, and not by contractor’s failure to perform contractual duty); Cf. Olympic, Inc. v. Providence Washington Ins. Co. of Alaska, 648 P. 2d 1008 (Alaska 1982) (where tenant agreed to purchase insurance but failed to name landlord as an insured, and landlord was independently insured, court would not hold tenant’s insurer liable to landlord’s insurer).

But see Commercial Union Fire Ins. Co. v. Kelly, 389 P. 2d 641 (Okla.1964) (following a fire for which landlord’s insurer settled damage claim, landlord’s insurer had cause of action in subrogation against tenant based on tenant’s breach of contractual obligation to insured to deliver possession of leased premises in good state of repair at expiration of lease).

Furthermore, because the landlord suffered no damages, the insurer has no right of subrogation. In subrogation actions, the subrogee stands in the shoes of the sub-rogor and has only those rights which the subrogor had. Allstate Ins. Co. v. Metropolitan Dade County, 436 So. 2d 976 (Fla. 3d DCA 1983), rev. denied, 447 So. 2d 885 (Fla. 1984). The landlord suffered no injury from the tenant’s breach of the lease, as the landlord’s insurer fully covered the fire damage.2

Because the insurer failed to state a claim for subrogation, the trial court properly dismissed its complaint.

AFFIRMED.

. There is no indication or allegation in the record that the fire was caused by Penrod's negligence or tortious act.

. The landlord's only possible loss caused by the breach of contract is the cost of the insurance premiums the landlord paid to its insurer; the landlord has not sought to recover those payments.


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Cited By

  • Fayad v. Clarendon Nat'l Ins. Co., 899 So. 2d 1082 (Fla. 2005)
    …caused by human activity, insurers have the opportunity to recover some of the payments made to their insured by asserting subrogation rights against the entity responsible for the activity. See generally Cas. Indem. Exchange v. Penrod Bros., Inc., 632 So. 2d 1046, 1047 (Fla. 3d DCA 1993) (“After payment of a loss to its insured, an insurer may be subrogated to ‘any right of action that the insured may have against the third person whose negligence or wrongful act caused the loss.’ ”) (quoting Indiana Ins. Co…
  • …MG argues that National Union is barred from conventional subrogation because it has an interest in, and relation to, this matter, by the money it paid and now seeks to recover. However as stated in Casualty Indemnity Exchange v. Penrod Bros., Inc., 632 So. 2d 1046, 1047 (Fla. 3d DCA 1993) (citations omitted) “After payment of a loss to its insured, an insurer may be subrogated to ‘any right of action that the insured may have against the third person whose negligence or wrongful act caused the loss.’ ” Theref…
  • Jedak Corp. v. Seabreeze Off. Assocs., LLC, 244 So. 3d 342 (Fla. 5th DCA 2018)
    …ting summary judgment in favor of Landlord and in denying summary judgment in favor of Tenant. Accordingly, we reverse and remand this cause with directions that summary judgment be entered in favor of Tenant. See Cas. Indem. Exch. v. Penrod Bros. , 632 So. 2d 1046, 1047 (Fla. 3d DCA 1993) (where landlord's insurer fully covers loss, landlord suffers no compensable damages arising from tenant's breach of contract).1 [*343] REVERSED AND REMANDED. COHEN, C.J., PALMER and TORPY, JJ., concur. Landlord's insur…

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