ELIZABETH A. DAVIS, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF PAUL T. DAVIS, DECEASED, APPELLANT,
v.
FRANK E. WILLIAMS, ROBERT P. GAINES, GEORGE GILLETTE, ROBERT SHIELL AND MABRY DOZIER, AS AND COMPRISING THE BOARD OF HOSPITAL TRUSTEES OF ESCAMBIA COUNTY, FLORIDA, AND ST. PAUL FIRE AND MARINE INSURANCE COMPANY, A CORPORATION, APPELLEES

Fla. 1st DCA | 1970-10-01
No. M-382
JOHNSON, C. J., and RAWLS, J., concur.
239 So. 2d 593 Florida District Court of Appeal, First District (1970) Negative Treatment
Cited by 10 cases

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Synopsis

Elizabeth Davis appealed the dismissal of her wrongful death action against St. Paul Fire and Marine Insurance Company, the hospital's professional liability insurer. The court reversed the dismissal, holding that liability insurance carriers can be joined as defendants in tort actions and that the statute of limitations had not run because Davis's cause of action against the insurer had not yet accrued.


Holding

The court held that liability insurance carriers can be joined as defendants in actions against their insureds for all types of liability insurance, not just motor vehicle coverage. The court further held that the statute of limitations does not bar Davis's claim because her cause of action against the insurer arises from contract, not tort, and does not accrue until judgment is obtained against the insured tortfeasor. Since Davis's right to join the insurer arose when Bussey v. Shingleton was decided on June 6, 1968, and her amended complaint was filed June 2, 1969, the action was timely.


Headnotes

[1] A liability insurance carrier may be joined as a party defendant in an action against its insured in all types of liability insurance, not solely motor vehicle liability…

[2] A cause of action against a liability insurance carrier arises from contract, not tort, and accrues when a judgment is secured against the insured tortfeasor.

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Key Quotes

“by its decision in Shingleton v. Bussey the Supreme Court intended to and did extend the doctrine permitting the joinder of liability insurance companies in actions against their insureds to all types of liability insurance including, but not limited to, motor vehicle liability insurance.”

Establishes the holding that liability insurers can be joined as defendants in all types of liability cases, not just motor vehicle cases.

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Facts & Procedural History

Paul T. Davis died on January 17, 1967, allegedly due to negligence by Escambia General Hospital. His wife, Elizabeth Davis, filed suit against the ho…

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Opinion of the Court
WIGGINTON, Judge.

WIGGINTON, Judge.

Plaintiff has appealed a final judgment dismissing her amended complaint against appellee, St. Paul Fire and Marine Insurance Company, on the specific ground that it failed to state a cause of action. Appellant contends that the trial court’s action in dismissing her complaint against this defendant was erroneous and should be reversed.

Plaintiff instituted this action against appellees as the Board of Hospital Trustees of Escambia County, Florida, for *594damages resulting from the wrongful death of her husband caused by the alleged negligence of the Escambia General Hospital administered by appellees. By leave of court an amended complaint was filed joining St. Paul Fire and Marine Insurance Company as an additional defendant and alleging that it issued to Escambia General Hospital a professional liability insurance policy insuring the hospital against liability because of injury, including death, sustained by any person arising out of malpractice, error or mistake committed during the policy period. Appellee insurance company filed a motion to dismiss the complaint as to it on two specific grounds. The first ground alleged that the complaint failed to state a cause of action against it because it showed on its face that appellee was merely a liability insurance carrier for Escambia General Hospital and that until the liability of the hospital is established in favor of plaintiff, she possesses no cause of action against the insurance company by virtue of having issued such liability policy. Appellee’s second ground of its motion was that the statute of limitations barred the action against it. In addition to the foregoing motion, all defendants answered the complaint and moved for summary judgment in their favor. The court denied appellees’ motion for summary judgment but granted the insurance company’s motion to dismiss the complaint by order based upon the following conclusion of law, to wit:

“ORDERED AND ADJUDGED that said motion to dismiss be and the same is hereby granted upon the ground that Shingleton v. Bussey, Fla. [1969], 223 So.2d 713, permit's the joinder of an insurance company as a party defendant only where such policy insures a motor vehicle for liability.”

Subsequent to the rendition of the foregoing judgment this court had occasion to determine the scope of the Shingleton v. Bussey decision on which the trial court relied in dismissing the complaint. In our review we found and so held in Beta Eta House Corporation v. Gregory1 that by its decision in Shingleton v. Bussey the Supreme Court intended to and did extend the doctrine permitting the joinder of liability. insurance companies in actions against their insureds to all types of liability insurance including, but not limited to, motor vehicle liability insurance. Our decision was reviewed and subsequently affirmed by the Supreme Court in its opinion rendered in Beta Eta House Corporation v. Gregory.2 We therefore hold that appellee insurance company was properly joined as a party defendant under'the doctrine of Shingleton v. Bussey, supra, and the trial court erred in dismissing it from this action.

Appellee asserts in the alternative that even if the reason assigned by the trial judge in dismissing the complaint against it was erroneous, the judgment of dismissal should nevertheless be affirmed if the trial court’s action is proper on any other ground. Appellee then asserts that the complaint against it shows on its face that the statute of limitations for bringing this action against appellee has run, and the action is therefore barred. In support of this position appellee points to that allegation of the complaint which alleges that plaintiff’s decedent died on January 17, 1967, as a result of the negligent act of the defendant hospital. It is appellee’s position that the two-year statute of limitations for bringing actions arising upon account of an act causing a wrongful death is applicable,3 and since the complaint against it was not filed until June 2, 1969, it was not filed within the two-year period of limitations and is therefore barred. With this contention we cannot agree.

*595The statute of limitations on which appellee relies is applicable to actions in tort resulting in death caused by the wrongful act of the defendant. Appellant’s cause of action, if any, against appellee insurance company does not arise in tort but arises out of contract, and does not accrue until after appellant has secured a judgment against the alleged defendant tort-feasor to whom appellee issued its policy of professional liability insurance. It is therefore apparent that appellant’s cause of action to impose liability on ap-pellee under the insurance policy issued by it has not yet accrued and, therefore, any statute of limitations which does not commence to run until the accrual of the cause of action has not yet been activated.4 Appellant’s right to join appellee insurance company as a party defendant in this action arose upon the rendition of this court’s opinion in the case of Bussey v. Shingleton 5 which opinion was filed on June 6, 1968, and rehearing denied on July 9, 1968. Prior to the filing of this decision the established procedural law of Florida precluded a plaintiff in a tort action such as the case sub judice from joining the defendant’s liability insurance carrier as a party defendant in the action, but required plaintiff to proceed against the carrier in a garnishment action only after securing judgment against the insured tort-feasor. Since the appellant’s right to join appellee as a defendant in this case arose upon the filing of our decision in Bussey on June 6. 1968, and the amended complaint against appellee was filed in this cause on June 2, 1969, the action was commenced against appellee within one year after appellant’s right to join appellee as a defendant herein accrued. It would therefore appear that this action was seasonably commenced either under the statute of limitations relied on by appellee as well as under any other statute of limitations which might be considered to be more appropriately applicable.

We have considered appellee’s remaining ground for affirmance of the judgment of dismissal but find it to be without substantial merit.

Appellees cross-assign as error the order of the trial court denying their motion for summary judgment. From our review of the record we find competent and substantial evidence creating a genuine issue of fact with respect to a causal connection between appellees’ treatment of the deceased as a paying patient at the hospital and the cause of his death. The order denying summary judgment is accordingly affirmed.

The final judgment of dismissal herein is reversed and the cause remanded for further proceedings consistent with our views expressed herein.

JOHNSON, C. J., and RAWLS, J., concur.


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Citator

Cited By

  • Fla. Patient's Comp. Fund v. Tillman, 453 So. 2d 1376 (Fla. 4th DCA 1984)
    …with the hospital and Dr. Waxman and therefore the two year statute of limitations was not applicable as to the Fund. Further, Tillman argues that the “insurer’s exception” to the statute of limitations should be applied and cites Davis v. Williams, 239 So. 2d 593 (Fla. 1st DCA 1970), and Clemons v. Flagler Hospital, Inc., 385 So. 2d 1134 (Fla. 5th DCA 1980), for this position. We disagree that the statute of limitations defense is available to Florida Patient’s Compensation Fund in the present case. We, ins…
  • Clemons v. Flagler Hosp., Inc., 385 So. 2d 1134 (Fla. 5th DCA 1980)
    …o. v. Florida Power & Light Co., 222 So. 2d 58 (Fla. 3d DCA 1969); 54 C.J.S. Limitations of Actions § 141 (1948) and cases collected. Consequently, the statute of limitations has not yet even begun to run against the carriers.2 In Davis v. Williams, 239 So. 2d 593, 595 (Fla. 1st DCA 1970), the court squarely so held in ruling on the identical issue presented here: [*1136] The statute of limitations on which ap-pellee relies is applicable to actions in tort resulting in death caused by the wrongful act of the…
  • …ant, the statute which limits the time within which an action may be commenced against the tortfeasor is not available to the insurer as a defense. See, e.g., Clemons v. Flagler Hospital, Inc., 385 So. 2d 1134 (Fla. 5th DCA 1980); Davis v. Williams, 239 So. 2d 593 (Fla. 1st DCA 1970). The Owens court rejected this contention based upon language in Menendez which states that the obligation of the Patient’s Compensation Fund is not to the health care provider, but rather is primarily to a plaintiff patient. Men…
    1 / 2

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