FLORIDA DEPARTMENT OF FINANCIAL SERVICES, AS THE RECEIVER OF ASSOCIATED BUSINESS OWNERS, SELF INSURERS FUND AND FLORIDA WORKERS' COMPENSATION INSURANCE GUARANTY ASSOCIATION, INCORPORATED, APPELLANTS,
v.
TAMPA SERVICE COMPANY, INC., APPELLEE
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This case involves a dissent arguing that an insured's comparative negligence should not be considered when determining if the insured has been 'made whole' for the purpose of an insurer's subrogation rights, advocating for the return of 100% of deductibles.
The dissent would reverse the lower court's decision to deny class certification, arguing that insurers violated the 'made whole' rule by not returning 100% of insureds' deductibles, and that comparative negligence is irrelevant to this determination.
[1] A party's failure to respond to a request for admissions within the prescribed time period results in the matters contained in the request being deemed admitted.
[2] Admissions obtained through a party's failure to respond to a request for admissions are conclusive and preclude recovery on issues covered by the admissions.
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Join FLexlaw to unlock all legal intelligenceThe dissent disagrees with the majority's conclusion that an insured's comparative negligence should affect the application of the 'made whole' rule i…
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BROWNING, J.
This is an appeal by Florida Department of Financial Services (Receiver) from a summary judgment in favor of Tampa Service Company, Inc. (TSC). Because Receiver is bound by admissions that preclude recovery, we affirm.
The facts of this appeal are as follows. In 1997, Associated Business Owners, Self Insurers Fund (ABO) was adjudged insolvent. Florida Department of Financial Services became the receiver. Receiver then assessed the members of ABO, including TSC, for a deficiency under section 624.474, Florida Statutes. TSC argued below that it was not a member of ABO, but that it had a separate insurance agreement with ABO, the details of which are obscure to this Court. TSC sent to Receiver a request for admissions, including an admission that TSC was not a “member” of ABO, as that term is used in sections 624.474 and 624.476, Florida Statutes. Receiver did not respond to the request for admissions until over nine months later; while the response was accompanied by a motion for enlargement of time within which to respond, Appellant never presented such motion for consideration and disposition by the trial judge. On TSC’s motion, and after a hearing, the trial court entered summary judgment for TSC, having found that the existence of any separate insurance agreement does not make TSC a member of ABO and subject to statutory assessments under sections 624.474 and 624.476.
Receiver’s response to the request for admissions was untimely; thus, the matters in the request are properly deemed admitted. Fla. R. Civ. P. 1.370(a). Among those admissions is the admission that TSC is not a member of ABO under the two statutes pertaining to assessment by self-insurance funds, which permit those funds to assess only from their “members.” The effect of Receiver’s admissions is to establish conclusively that TSC is not a member of ABO for purposes of assessment, regardless of any agreement they may have had. By Receiver’s admissions, then, TSC cannot be assessed by Receiver under these statutes as a member of ABO. Accordingly, there was no error in entering summary judgment for TSC.
This holding only absolves TSC from Appellant’s assessment under section 627.474 and does not determine any other issues relating to TSC’s potential liability under the separate agreement it asserts binds the parties, or any other basis for TSC’s liability for the deficiency asserted as an assessment.
AFFIRMED.
BENTON and POLSTON, JJ., concur.