PATRICIA ANN SHANKS, APPELLANT,
v.
NELSON FRANK BROTHERS, APPELLEE
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An insurance company (Allstate) paid uninsured motorist benefits to the mother of a deceased minor pedestrian, then sought indemnification from the uninsured driver. The court held that the insurer's statutory right of indemnification is governed by the three-year statute of limitations for statutory liabilities, not the two-year wrongful death statute, reversing the trial court's dismissal.
The court held that the three-year statute of limitations under Section 95.11(5)(a), Florida Statutes, applies to an insurer's indemnification action under Section 627.0851, Florida Statutes, because the statutory right of indemnification is created by statute and does not arise until payment is made by the insurer.
[1] An insurer's right of indemnification against a tortfeasor arises upon payment to the insured, not upon the occurrence of the underlying injury.
[2] The statute of limitations for an insurer's action for indemnification against a tortfeasor begins to run from the date of payment to the insured.
Previewing 2 of 3 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 insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights or recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made”
Establishes the statutory indemnification right created by Section 627.0851(4), which is the source of Allstate's cause of action.
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Join FLexlaw to unlock all legal intelligenceJohnnie Lee Shanks, a minor, was struck and killed by an automobile driven by uninsured motorist Nelson Frank Brothers. Shanks' mother held an Allstat…
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Johnnie Lee Shanks, a minor pedestrian, was struck and killed by an automobile owned and driven by Nelson Frank Brothers, an uninsured motorist. The deceased minor was survived by his mother, appellant here, who at the time of the accident had a policy of insurance with Allstate Insurance Company which included uninsured motorist coverage.
Under the terms of the uninsured motorist coverage and following arbitration, an order was entered on April 21, 1967, compelling Allstate Insurance Company to pay the mother of Johnnie Lee Shanks the sum of $6,500 which Allstate paid in full. On August 9, 1967, Allstate caused to be filed a suit in the name of Patricia Ann Shanks, individually, and for the use and benefit of Allstate Insurance Company against the defendant, Nelson Frank *502Brothers. This suit was subsequently dismissed by voluntary dismissal on the part of Mrs. Shanks. A new complaint was filed on September 19,. 1968, and was attacked by the defendant on the grounds that the two year statute of limitations covering death actions had run. This appeal ensued.
Appellant maintains that the court erred in dismissing the last complaint in that it was error to apply the two year statute of limitations governing wrongful death actions rather than applying the three year statute of limitations controlling rights arising under Section 627.0851, Fla.Stat., F.S.A. Section 95.11(5) (a), Fla.Stat., F.S.A., allows three years for an action to be brought upon a liability created by statute. Section 95.11(6), Fla. Stat, F.S.A., provides two years for bringing a wrongful death action. We believe the court erred in applying Section 95.11 (6), Fla.Stat., F.S.A., and we reverse.
Section 627.0851(4), Fla.Stat., F.S.A., provides:
“In the event of payment to any person under the coverage required by this section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights or recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made * *
The statute quoted above creates an indemnification right brought about by that particular statute and since the right of indemnification did not arise until Allstate paid Mrs. Shanks her award, the statute of limitations did not begin to run until then. At that point Allstate had three years pursuant to Section 95.11(5) (a), Fla.Stat., F.S.A., in which to bring its action. Therefore, to apply the wrongful death statute of limitations was error.
For these reasons we reverse and remand for proceedings consistent with this opinion.
HOBSON, C. J., and McNULTY, J., concur.
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Gov't Emps. Ins. Co. v. Wheelus, 319 So. 2d 181 (Fla. 4th DCA 1975)…ttlement among appellees Wheelus and Coca-Cola and Floyd had been concluded (January 25, 1971); then, argues appellant, the proceeds from which it was entitled to reimbursement came into being. Appellees (relying on Shanks v. Brothers, Fla.App.1970, 230 So. 2d 501) contend the statute of limitations began to run June 8, 1967, the date appellant alleges it made the payments to the Wheeluses. Appellees also contend that the order of dismissal was proper because the payments for which appellant seeks subrogation…
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Brothers v. Shanks, 237 So. 2d 755 (Fla. 1970)…Certiorari dismissed without opinion. 230 So. 2d 501.…