CLAUDE M. RUSSELL, APPELLANT,
v.
ORANGE COUNTY, FLORIDA, AND TRAVELERS INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLEES
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Russell sued Orange County for negligent road maintenance and sought to join its liability insurer, Travelers Insurance Company, as a defendant. The trial court dismissed both defendants, and the appellate court affirmed the dismissal of the insurer, holding that an insurer's liability is derivative of the insured's liability and cannot be established independently.
The court affirmed the dismissal of the insurer because the insurer's liability is derivative of and dependent upon the establishment of liability against the insured county. Since no cause of action was stated against the county, none could be stated against its insurer. The Shingleton v. Bussey decision merely created a procedural mechanism for joining insurers but did not change the substantive law of insurer liability.
[1] A cause of action against an insurer predicated solely on the insured's liability is properly dismissed when no cause of action is stated against the insured.
[2] A procedural rule permitting direct joinder of an insurance carrier in a suit against its insured does not alter the substantive law regarding the insurer's liability.
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“As to Travelers' liability, the defense of sovereign immunity is immaterial in the present posture of the case.”
Establishes that the insurer's immunity defense is not the dispositive issue; rather, the derivative nature of insurer liability is controlling.
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Join FLexlaw to unlock all legal intelligenceRussell was injured in an automobile accident on July 27, 1968, on a county road. He filed an amended complaint alleging Orange County negligently mai…
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The plaintiff filed an amended complaint in the Circuit Court for Orange County, Florida, against Orange County, Florida, and Travelers Insurance Company. Liability of Orange County was predicated on allegations asserting that the county had negligently maintained a county road which caused the plaintiff injuries in an automobile accident on 27 July 1968. The basis for the liability of the co-defendant, Travelers Insurance Company, was alleged in paragraph two of the amended complaint as follows:
“That at all times material to this cause, TRAVELERS INSURANCE COMPANY, a foreign corporation, was and is the liability, casualty insurance carrier for ORANGE COUNTY, FLORIDA, and is a real party in interest in this cause, maintaining liability insurance coverage for the accident hereinafter described. That, at all times material to this cause, the Defendant, TRAVELERS INSURANCE COMPANY, is estopped, as a matter of law, from asserting, pleading or otherwise contending the defense of governmental immunity of ORANGE COUNTY * * * ”
Both the county and Travelers filed a motion to dismiss. The trial court entered *193a separate order dismissing the amended complaint as to each defendant. Both of these orders were in the nature of final judgments.
The plaintiff has appealed from the order which dismissed the amended complaint as to the defendant Travelers Insurance Company, but has not appealed from the order which dismissed the amended complaint as to the county. This latter order must, therefore, be presumed correct.
The issue on appeal is whether or not the amended complaint was properly dismissed as to the defendant Travelers Insurance Company.
The plaintiff contends that under the recent decision of Shingleton v. Bussey, Fla. 1969, 223 So.2d 713, the plaintiff is entitled to bring a direct action against the insurance company which, according to the plaintiff, is precluded from raising the defense of sovereign immunity that was available as a defense to the county.
As to Travelers’ liability, the defense of sovereign immunity is immaterial in the present posture of the case. As noted above, the defendant Travelers was alleged to be the insurance carrier for the county and no basis for its liability was asserted in the amended complaint other than its liability as an insurer of the county. Therefore, once the trial court determined that the amended complaint stated no cause of action against the county it necessarily followed that no cause of action was stated against the insurance carrier for the simple reason that the insurer’s liability was dependent upon the establishment of liability on the part of the county.
Shingleton v. Bussey, supra, relied on by the appellant did not effect a change in the substantive law of this state dealing with the liability of insurers. It merely innovated a procedure which permits the joinder of an insurance carrier in a suit against the insured. See Beta Eta House Corporation, Inc. v. Gregory, Fla.App.1970, 230 So.2d 495.
We conclude that the trial judge did not err in dismissing the amended complaint as against the defendant Travelers.
Affirmed.
CROSS, C. J., and OWEN, J., concur.
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Augusta Kephart v. Pickens, 271 So. 2d 163 (Fla. 4th DCA 1972)…act provisions of the policy.5 In the case sub judice recovery is being sought for alleged negligence under the liability provisions of an insurance policy. Under these facts, our decision is controlled by the reasoning in Russell v. Orange County, 237 So. 2d 192 (Fla.App.1970), cert. denied 239 So. 2d 825 (Fla.1970). In Russell, the plaintiff attempted a direct action solely against the insurer6 under a liability policy for the negligence of the insured. The court determined this procedure to be impermissib…
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Nationwide Mut. Fire Ins. Co. v. Holmes, 352 So. 2d 1233 (Fla. 4th DCA 1977)…order to recover from his insurer, the insured is an indispensable party and no action may proceed against the insurer without him, or his properly substituted party. Kephart v. Pickens, 271 So. 2d 163 (Fla. 4th DCA 1972); Russell v. Orange County, 237 So. 2d 192 (Fla. 4th DCA 1970). The Petition for Writ of Certiorari is granted. The Order permitting the joinder of the personal representative is quashed with directions to enter summary judgment in favor of Appellant Nationwide, all without prejudice to Pla…
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AETNA Cas. & Sur. Co. v. Beane, 385 So. 2d 1087 (Fla. 4th DCA 1980)…ility of an insurer depends upon the liability of its insured and that an insurer’s obligation extends only to the legal obligations of the insured, the release of Aetna’s insured effectively extinguished Aetna’s liability. Russell v. Orange County, 237 So. 2d 192 (Fla. 4th DCA 1970) and Allstate Insurance Company v. Royal Guardian Insurance Company of Canada, 314 So. 2d 14 (Fla. 4th DCA 1975). The flaw in the logic of appellant’s position is that the liability of the insured arises in the context of commiss…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Shingleton v. Bussey, 223 So. 2d 713 (Fla. 1969)
- Gulf Stream Motors, Inc. v. Christina Cook & the Fla. Indus. Comm'n, 223 So. 2d 713 (Fla. 1969)
- Beta ETA House Corp. v. Gregory, 230 So. 2d 495 (Fla. 1st DCA 1970)