KENNETH I. ROBERTS, APPELLANT,
v.
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, A CORPORATION, APPELLEE
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The Florida First District Court of Appeal affirmed the trial court's dismissal of a complaint with prejudice where the plaintiff sued an insurance company directly for damage caused by an allegedly negligent Georgia repair shop, without joining the actual repair shop as a defendant. The court held that the repair shop was an indispensible party that must be joined for the action to proceed.
The trial court properly dismissed the complaint with prejudice because the Georgia repair shop was an indispensible party that must be joined. Direct liability cannot be imposed upon an insurer solely because of the alleged negligence of its insured without joining the insured as a party defendant.
[1] An insurer is not directly liable for the alleged negligence of its insured when the insurer itself has committed no dereliction of duty.
[2] A plaintiff cannot impose direct liability upon an insurer solely based on the alleged negligence of its 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“It is important to note that direct liability is here sought to be imposed upon the insurer, not for any dereliction of duty on its part, but solely because of the alleged negligence of its insured”
Establishes the key distinction that direct liability is being imposed on the insurer solely based on the insured's negligence, distinguishing it from cases where the insured is a passive participant
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Join FLexlaw to unlock all legal intelligenceKenneth Roberts, a Florida resident, had his truck repaired by a Georgia resident repair shop while traveling through Georgia. Unsatisfied with the re…
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BOYER, Judge.
Appellant, who was plaintiff in the trial court, seeks reversal of an order of the trial court dismissing his complaint with prejudice.
The facts are not in dispute. Appellant, a Florida resident, while traveling through Georgia had his truck repaired in Georgia by a Georgia resident. Upon returning to Florida he sought to sue for alleged unsatisfactory repairs, the gravamen of his action being that the truck must now be again repaired and that he has lost the use thereof as a result of the alleged “slip-shod” repairs by the Georgia repairman. The complaint was filed in Duval County, Florida, naming as the only defendant appellee Nationwide Mutual Fire Insurance Company, alleged to be the insurance carrier for the Georgia repairman. Nationwide moved to. dismiss for failure to join an indispensible party. The plaintiff (appellant) refused to amend and refused to add the repairman as a party defendant, electing to stand on his complaint as filed. The order here appealed, dismissing with prejudice, was thereupon entered.
It is important to note that direct liability is here sought to be imposed upon the insurer, not for any dereliction of duty on its part, but solely because of the alleged negligence of its insured; thereby distinguishing the case sub judice from a situation wherein the insured might be a passive and disinterested participant. The several cases recited by appellant are adequately discussed in a well reasoned opinion of our sister court of the Fourth District, Kephart v. Pickens, 271 So. 2d 163 (Fla. 4th DCA 1972), with which we agree. Although the factual basis in Kephart v. Pickens is distinguishable, which is virtually always the case, the rationale is equally applicable sub judice.
While the Kephart decision has been severely criticized in a law review article, “Mandatory Joinder of Parties in Civil Proceedings”, Vol. XXXVI, No. 3, Spring 1974, University of Florida Law Review, wherein the author, alluding to the reasoning of that opinion states: “This reasoning amounts to nonreasoning and cannot survive analysis.”, neither the author of that article nor appellant in his brief has cited us to any Florida court taking a contrary position: Nor do we.
AFFIRMED.
MeCORD, C. J., and MASON, ERNEST E., Associate Judge, concur.
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Gonzalez v. The Honorable Jack M. Turner, 427 So. 2d 1123 (Fla. 3d DCA 1983)…Continental. Compare, e.g., Thompson v. Commercial Union Insurance Co. of New York, 250 So. 2d 259 (Fla.1971); Maxwell v. Southern American Fire Insurance Co., 235 So. 2d 768 (Fla. 3d DCA 1970), with Roberts v. Nationwide Mutual Fire Insurance Co., 355 So. 2d 219 (Fla. 1st DCA 1978); Nationwide Mutual Fire Insurance Co. v. Holmes, 352 So. 2d 1233 (Fla. 4th DCA 1977); Kephart v. Pickens, 271 So. 2d 163 (Fla. 4th DCA 1972).…
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Piccolo v. HERTZ Corp., 421 So. 2d 535 (Fla. 1st DCA 1982)…ubstantive. Accordingly, we hold that the Louisiana direct action statute is substantive. The second issue presented is whether the insured is an indispensable party to this suit. Appellee urges that Roberts v. Nationwide Mutual Fire Insurance Co., 355 So. 2d 219 (Fla. 1st DCA 1978), and Kephart v. Pickens, 271 So. 2d 163 (Fla. 4th DCA 1972), are controlling on this point. Both of those cases involved out-of-state incidents, out-of-state insureds, Florida residents, insurers who were qualified to do business…
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Am. Mut. Ins. Co. v. Bender, 513 So. 2d 669 (Fla. 1st DCA 1987)…o action may proceed against the insurer without the insured or its properly substituted party. Kephart v. Pickens, 271 So. 2d 163 (Fla. 4th DCA 1972), cert. denied, 276 So. 2d 168 (Fla.1973); and Roberts v. Nationwide Mutual Fire Insurance Company, 355 So. 2d 219 (Fla. 1st DCA 1978). Count I of respondents’ complaint alleges negligence on the part of the insured (Keasbey & Mattison, Inc.), thereby requiring proof of the insured’s negligence in order to recover from the insurer (petitioner). However, the comp…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Augusta Kephart v. Pickens, 271 So. 2d 163 (Fla. 4th DCA 1972)