VINSON MARLIN, APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, A CORPORATION; AND W. GEORGE ALLEN, ESQUIRE, INDIVIDUALLY, APPELLEES
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An insured sued his automobile insurer and a retained defense attorney after an excess verdict, claiming the insurer was negligent in failing to control the attorney's conduct. The court affirmed judgment on the pleadings for the insurer, holding that an insurer has no liability for an attorney's professional negligence because the attorney acts as an independent contractor.
An insurer is not liable for the professional negligence of an attorney it retains to defend the insured because the attorney acts as an independent contractor not subject to the insurer's control and direction, and the insurer has no obligation or right to supervise or control the attorney's professional conduct.
[1] An insurer is not liable for the malpractice of an attorney it retains to defend its insured.
[2] An attorney retained by an insurer to defend an insured acts as an independent contractor, not subject to the insurer's control and direction.
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 attorney retained to conduct the litigation acts in the capacity of an independent contractor, responsible for the results of his/her conduct, and is not subject to the control and direction of the insurer.”
Establishes the central legal principle that defense counsel is an independent contractor not under the insurer's control.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAn insured operating his vehicle struck and injured a bicyclist. The insurer, which had issued an automobile liability policy with $100,000 per person…
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STONE, J.
Marlin (insured) appeals a judgment on the pleadings entered in favor of State Farm Mutual (insurer). We affirm.
The complaint, sounding in breach of contract, fails to set forth allegations that would impose liability on the insurer for alleged acts of negligence by an attor ney retained to represent the insured. See Aetna Cas. & Sur. Co. v. Protective Nat’l Ins. Co. of Omaha, 631 So. 2d 305 (Fla. 3d DCA 1993), rev. denied, 641 So. 2d 1346 (Fla.1994).
The insurer issued an automobile policy to the insured which provided liability coverage in the amount of $100,000 per person. The insured, while operating his vehicle, struck and injured a bicyclist. After investigating the accident, the insurer tendered the full $100,000 policy limit to the victim in settlement of any and all claims against the insured. The victim, however, rejected the offer and initiated a personal injury lawsuit against the insured.
Under the insurance policy, the insurer agreed to retain attorneys to defend any suit against the insured. The insurer complied with this contractual obligation and retained an attorney to represent the insured. Following an excess verdict, the insured brought suit against the insurer and the attorney. As to the insurer, the allegations concerned its negligence in failing to exercise control over the retained attorney.
The circumstances of the instant case are analogous to those in Aetna Casualty and Surety Co., where an excess liability insurance carrier/plaintiff sued a primary general liability insurance carrier/defendant for the negligence of the attorney it selected to defend its insured. The Third District held that an insurer is not hable for the malpractice of the attorney it retains to defend the insured and entered summary judgment for the defendant. Id. at 306-08. The Third District explained that the attorney retained to conduct the litigation acts in the capacity of an independent contractor, responsible for the results of his/her conduct, and is not subject to the control and direction of the insurer. Thus, because the insurer exercises no control over the attorney’s performance, it is not, absent an agreement, liable for any alleged acts of professional negligence committed by the attorney.
Here, the insurer complied with its obligation by retaining the attorney. As the insurer has no obligation or right to supervise or control the professional conduct of the attorney, it is not liable for the litigation decisions of counsel. See Merritt v. Reserve Ins. Co., 34 Cal.App.3d 858, 110 Cal.Rptr. 511 (1973); Brown v. Lumbermens Mut. Cas. Co., 90 N.C.App. 464, 369 S.E. 2d 367, 371 (1988); State Farm Mut. Auto. Ins. Co. v. Traver, 980 S.W. 2d 625, 628-29 (Tex.1998).
As to all other issues raised, we find no reversible error or abuse of discretion.
FARMER and SHAHOOD, JJ., concur.
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