INDIANA INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLANT,
v.
MILDRED COLLINS ET AL., APPELLEES
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Indiana Insurance Company appealed the dismissal of its third-party subrogation complaint filed against various defendants and their insurers in an uninsured/underinsured motorist coverage case. The court reversed, holding that while an insurer's subrogation complaint must follow payment to the insured and be filed in the insured's name, dismissal with prejudice was improper and the insurer should be allowed to amend its complaint after settling with the insured.
An insurer's third-party subrogation complaint must be filed only after payment of the claim to the insured and must be filed in the insured's name for the use and benefit of the insurer. However, dismissal with prejudice was improper; the insurer should be permitted to settle its claim with the insured and then file an amended third-party complaint in compliance with these requirements.
[1] An insurer seeking to file a third-party complaint for subrogation must first pay the insured's loss.
[2] A third-party subrogation complaint must be filed in the name of the insured for the use and benefit of the insurer.
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Join FLexlaw to unlock all legal intelligence“It is well settled that an insurer, after payment of a loss incurred by the insured, is entitled to be subrogated pro tanto to any right of action that the insured may have against the third person whose negligence or wrongful act caused the loss.”
Establishes the fundamental principle that subrogation rights arise only after the insurer pays the claim to the insured.
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Join FLexlaw to unlock all legal intelligenceOn January 23, 1976, the plaintiffs' minor son, insured under Indiana Insurance Company's automobile liability policy with uninsured/underinsured moto…
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HENDRY, Judge.
Appellant insurer, defendant and third party plaintiff below, takes this consolidated appeal from three orders of the trial court which dismissed appellant’s third party complaint against appellees, third party defendants below. We reverse.
The plaintiffs in the trial court were insured under the terms and provisions of a policy of automobile liability insurance issued to them by appellant. The policy, which provided uninsured/underinsured motorist coverage, further provided for direct Circuit Court action rather than the usual arbitration, to resolve disputes arising under the policy provisions relating to the uninsured/underinsured motorist coverage.
On January 23, 1976, plaintiffs’ minor son, insured under appellant’s policy, was injured in an automobile accident when the ear in which he was a passenger was involved in an intersectional collision. Pursuant to the terms of the policy, on December 10, 1976, plaintiffs filed suit against appellant. Subsequently, appellant filed its third party complaint against the various appel-lees, to wit: the owner of the vehicle in which plaintiffs’ son was riding, Foster; the driver of said vehicle, Edward Caronia, Jr., a minor; Edward Caronia, Sr., the driver’s father; Travelers Insurance Company, Caronia, Sr.’s carrier; Ansley, the driver of the other vehicle involved in the accident; Fuchs Baking Co., the owner of said other vehicle; and Liberty Mutual Insurance Company, Fuchs’ carrier. Basically, the third party complaint alleged that should plaintiffs recover from appellant, then appellees might be liable to appellant for damages.
All appellees moved to dismiss the third party complaint. Eventually, the trial judge dismissed the third party complaint with prejudice and this appeal follows.
Appellees argue that in order for appellant to file a third party complaint for subrogation, (1) the insureds (plaintiffs) must have first received payment from their insurer and (2) the subrogation complaint must then be filed by the insurer in the name of the insureds “for the use and benefit of” the insurer. We agree with appellee’s position.
As succinctly stated in 18A Fla.Jur. Insurance § 945:
“It is well settled that an insurer, after payment of a loss incurred by the insured, is entitled to be subrogated pro tanto to any right of action that the insured may have against the third person whose negligence or wrongful act caused the loss. This right may be the right of conventional subrogation, that is, subrogation by agreement between the insurer and the insured, or the right of equitable subrogation, by operation of law, upon payment of the loss and without any formal assignment or any express stipulation to that effect.” (Emphasis supplied.)
See also National Surety Corporation v. Bimonte, 143 So. 2d 709 (Fla.3d DCA 1962). Additionally, pursuant to Gould v. Weibel, 62 So. 2d 47 (Fla.1952) and Central Mutual Insurance Company v. State Farm Mutual Automobile Insurance Company, 247 So. 2d 94 (Fla.3d DCA 1971), the third party complaint for subrogation filed sub judice must be filed in the name of the insured for the use and benefit of the insurer. While appellant has neither settled its claim with its insureds, nor filed its third party subrogation claim in the name of the insureds, for the use and benefit of the insurer, we nevertheless are of the opinion that dismissal with prejudice was improper. Appellant should be given the opportunity to settle the claim with plaintiffs and then be allowed to file an amended third party complaint in the name of the plaintiffs for the use and benefit of the insurer. This two stage process, i. e., settlement and third party subrogation claim, may be completed in one proceeding or the trial judge, at his discretion, may bifurcate the stages holding a trial on plaintiffs’ claims against appellant prior to the third party action. See Fla.R.Civ.P. 1.270.
Accordingly, the orders appealed from are reversed and the cause remanded for further proceedings consistent herewith.
Reversed and remanded.
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Citator
Cited By (11 total)
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Fayad v. Clarendon Nat'l Ins. Co., 899 So. 2d 1082 (Fla. 2005)…d DCA 1993) (“After payment of a loss to its insured, an insurer may be subrogated to ‘any right of action that the insured may have against the third person whose negligence or wrongful act caused the loss.’ ”) (quoting Indiana Ins. Co. v. Collins, 359 So. 2d 916, 917 (Fla. 3d DCA 1978)); Fireman’s Fund Ins. Co. v. Rojas, 409 So. 2d 1166, 1167 (Fla. 3d DCA 1982) (“As a general rule, an insurer which has paid its insured’s claim or loss becomes subrogated to the insured’s cause of action against the tortfeaso…
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Allstate Ins. Co. v. Metro. Dade Cnty., 436 So. 2d 976 (Fla. 3d DCA 1983)…Insurance v. Concrete Equipment, supra, since the right to subrogation does not arise until the subro-gee first pays the claim. Quinones v. Florida Farm Bureau Mutual Insurance Co., 366 So. 2d 854 (Fla.3d DCA 1979); Indiana Insurance Co. v. Collins, 359 So. 2d 916 (Fla.3d DCA 1978). Appellant chose to wait and to allow its obligation to pay to be determined by arbitration. Eleven months remained between the date of the arbitration decision and the date the statute of limitations ran out. That is, eleven month…
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Holyoke Mut. Ins. Co. IN Salem v. Concrete Equip., Inc., 394 So. 2d 193 (Fla. 3d DCA 1981)…insurer is, as here, a bona fide subrogee (an indemnitor, not a lender) and thus a real party in interest. See also Forsyth v. Southern Bell Telephone & Telegraph Co., 162 So. 2d 916 (Fla. 1st DCA 1974). Compare Indiana Insurance Company v. Collins, 359 So. 2d 916 (Fla. 3d DCA 1978) (where one of the court’s holdings was that an insurer which has not made payment of a loss to an insured is not a subrogee entitled to maintain the action). Holyoke, a bona fide subrogee and real party in interest, had, then, on…1 / 2
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gould v. Weibel, 62 So. 2d 47 (Fla. 1952)
- Nat'l Sur. Corp. v. Myron S. Bimonte, 143 So. 2d 709 (Fla. 3d DCA 1962)
- Cent. Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 247 So. 2d 94 (Fla. 3d DCA 1971)