Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

September 11, 2015 by admin

Torts — Automobile accident — Insurance — Nonjoinder of insurer in action against insured

40 Fla. L. Weekly D2090aTop of Form

Torts
— Automobile accident — Insurance — Nonjoinder of insurer in action against
insured — Trial court departed from essential requirements of law by refusing
to dismiss count against tortfeasor’s insurer alleging breach of contract based
on insurer’s alleged presuit agreement with plaintiff to pay policy limits to
settle lawsuit — Plaintiff could not join insurer as party defendant until she
obtained either judgment against or settlement with insured

GEICO
GENERAL INSURANCE COMPANY, Petitioner, v. ANNIE LEPINE, as personal
representative of THE ESTATE OF WILLIAM LEPINE; and ANNIE LEPINE, individually,
Respondent. 2nd District. Case No. 2D14-5903. Opinion filed September 9, 2015.
Petition for Writ of Certiorari to the Circuit Court for Hillsborough County;
William P. Levens, Judge. Counsel: T.R. Unice, Jr. and Jeffrey D. Jensen of
Unice Salzman Jensen, P.A., Trinity, for Petitioner. James M. Ragano of A Bales
Professional Association, St. Petersburg, for Respondent.

(LaROSE,
Judge.) GEICO General Insurance Company (GEICO) petitions for certiorari review
of the trial court’s order denying its motion to dismiss count III of Annie
Lepine’s complaint, on behalf of her husband’s estate and herself, against
GEICO and Robert Taylor, the auto-accident tortfeasor whom GEICO insured. We
have jurisdiction. Fla. R. App. P. 9.030(b)(2)(A). Because the trial court
improperly refused to dismiss count III, we grant the petition.

Ms.
Lepine alleged that GEICO, as agent for its insured, Mr. Taylor, agreed to pay
policy limits of $100,000 to Ms. Lepine. She alleged that the agreement was
confirmed in a voicemail message and in a telephone conversation between a
GEICO representative and her counsel. Allegedly, GEICO later refused to pay up.
As a result, Ms. Lepine sued Mr. Taylor and GEICO. In count I, she alleged that
Mr. Taylor operated a motor vehicle negligently in a manner likely to cause
injury or death to her now-deceased husband, William. In count II, she stated a
cause of action for the wrongful death of her husband. Count III, against
GEICO, alleged a breach of contract claim for refusing to pay policy limits to
settle the lawsuit. Count IV asserted a similar breach-of-contract claim
against Mr. Taylor for GEICO’s refusal to pay policy limits.

GEICO
moved to dismiss claim III, contending that the nonjoinder statute barred Ms.
Lepine’s direct action against GEICO. The nonjoinder statute, section 627.4136,
Florida Statutes (2014), provides, in part, as follows:

Nonjoinder of
insurers. –  

(1) It shall be
a condition precedent to the accrual or maintenance of a cause of action
against a liability insurer by a person not an insured under the terms of the
liability insurance contract that such a person shall first obtain a settlement
or verdict against a person who is an insured under the terms of such policy
for a cause of action which is covered by such policy.
 
. . . .

(4) At the time
a judgment is entered or a settlement is reached during the pendency of
litigation, a liability insurer may be joined as a party defendant for the
purposes of entering final judgment or enforcing the settlement . . . .

(Emphasis
added.) More simply put,

[u]nder the
nonjoinder statute, an injured third party may not file a direct action against
a liability insurer for a cause of action covered by a liability insurance
policy without first satisfying either one of two conditions precedent: (1)
obtaining a settlement against the insured or (2) obtaining a verdict against
the insured.

Hazen
v. Allstate Ins. Co.
,
952 So. 2d 531, 534 (Fla. 2d DCA 2007). The purpose of the nonjoinder statute
is straightforward: “to ensure that the availability of insurance has no
influence on the jury’s determination of . . . damages.” Gen. Star Indem.
Co. v. Boran Craig Barber Engel Constr. Co.
, 895 So. 2d 1136, 1138 (Fla. 2d
DCA 2005).

Denying
GEICO’s motion to dismiss, the trial court, citing Hazen, concluded that
count III was “tantamount to a motion to enforce a settlement,” a claim not
barred by the nonjoinder statute. Proper application of Hazen, however,
compels the opposite result and leads us to grant the petition.

The
facts in Hazen are similar to those presented by Ms. Lepine. Ms. Hazen
was in an automobile accident with a negligent driver insured by Allstate. Hazen,
952 So. 2d at 533. Allstate contacted Ms. Hazen and orally agreed to repair her
car. Unfortunately, the attempted repairs were inadequate and the car was not
drivable. Id. at 533-34. Allstate refused to pay for the diminished
value of the car. Ms. Hazen sued Allstate for breach of the oral contract. Id.
at 534. She had not obtained a verdict against or settlement with Allstate’s
insured. Id.

On
appeal, we addressed whether the nonjoinder statute barred Ms. Hazen’s action
against Allstate. Id. In doing so, we discussed Howton v. State Farm
Mutual Automobile Insurance Co.
, 507 So. 2d 448 (Ala. 1987), which also
involved similar facts. Howton observed that:

the rule
prohibiting direct actions against the insurer has no application where the
insurer undertakes a new and independent obligation directly with a nonparty to
the insurance contract in its efforts to negotiate a settlement of the third
party’s claim. Indeed, an insurance carrier is no less liable under the law for
the breach of its own contract obligations or for its own tortious conduct than
is any other party.

Howton, 507 So. 2d at
450-51 (emphasis added); Hazen, 952 So. 2d at 539 (quoting Howton).
Thus, the Alabama court allowed Mr. Howton’s third-party direct action against
Allstate under a “new and independent obligation” theory. Hazen, 952 So.
2d at 538-39. The court held that because the nonjoinder statute applies only
to a cause of action covered by the insurance contract, it does not bar a
third-party direct action against the insurer on an obligation that is
independent of the insurance contract. Howton, 507 So. 2d at 450-51.

In
Hazen, we rejected Howton‘s reasoning as “unsound.” Hazen,
952 So. 2d at 539. We upheld the trial court’s dismissal of Ms. Hazen’s claim
against the insurer. Id. at 540. We also held that “[a] presuit
undertaking or agreement between an injured third party and an insurer about
the adjustment of a claim does not satisfy the alternative condition precedent
of settlement described in . . . nonjoinder statute because it does not occur
within the course of pending litigation in which the insured is already a
party.” Id. at 538. We held that a presuit agreement was not a new and
independent obligation because the insurance contract was the only reason the
insurer had to deal with the third party; “there was no legal ground upon which
the insurer could be deemed to have acted ‘independently’ of its insured.” Id.
at 539. Also noteworthy, we pointed out that there could be no new and
independent obligation because “there was no consideration for the alleged
agreement by the insurer to assume an obligation to the plaintiffs.” Id.
The same is true here.

Section
627.4136(4) allows the insurer to be joined as a party defendant only “[a]t the
time a judgment is entered or a settlement is reached during the pendency of
litigation . . . for the purposes of entering final judgment or enforcing the
settlement.” To allow Ms. Lepine to join GEICO now, before a jury verdict
against or settlement with Mr. Taylor, invites the very situation that the
nonjoinder statute seeks to avoid: the jury’s knowledge that insurance proceeds
are available could taint the jury’s verdict. See Hazen, 952 So.
2d at 540. To remain faithful to the text and purpose of the nonjoinder
statute, we must insist that Ms. Lepine not join GEICO as a party defendant
until she obtains either a judgment against or a settlement with Mr. Taylor,
GEICO’s insured.

The
trial court’s refusal to dismiss count III departed from the essential
requirements of the law, resulting in material and irreparable harm to GEICO
for the remainder of the case. Therefore, we grant the petition for writ of
certiorari.

Petition
granted. (NORTHCUTT and MORRIS, JJ., Concur.)

* * *

Filed Under: Articles

Primary Sidebar

Recent Posts

  • Insurance — Commercial property — Coverage — Business losses — Business interruption — All-risk commercial policy providing coverage for “direct physical loss of or damage to” property or “direct physical loss or damage to” property does not insure against losses and expenses incurred by business as result of COVID-19 — Under Florida law there is no coverage because COVID-19 did not cause tangible alteration of the insured properties
  • Insurance — Commercial property — Coverage — Business income losses — Trial court’s finding that policy covering loss of business income due to the suspension of operations caused by “direct physical loss or damage to property” required some tangible alteration to insured property comported with common meaning of its terms and context of policy as a whole — Policy did not cover economic losses insured suffered when it suspended its operations due to COVID-19 pandemic — No error in dismissing with prejudice insured’s petition for declaratory relief and damages
  • Torts — Negligent security — Sovereign immunity — Agency — Limited immunity — Punitive damages — Amendment of complaint — Action brought against company which contracted with county to provide security services and its employee — Defendant company was entitled to limited sovereign immunity under 768.28(5) where county asserted a degree of control over defendant’s employees — Fact that defendant’s employee was working alone rather than side-by-side with county employees did not change level of control county had over defendant employee as evidenced by contract between county and defendant — Absolute immunity under section 768.28(9) applied to defendant employee, but did not apply to defendant company because it is a corporation — No abuse of discretion in denying plaintiff’s motion for leave to amend complaint to add count for punitive damages where record is devoid of evidence that defendant employee engaged in intentional misconduct or gross negligence
  • Insurance — Attorney’s fees — Assignee’s action against insurer to recover payment for construction work performed on insured property following hurricane damage — Court adopts magistrate’s report and recommendation concluding that Section 627.7152(10), Florida Statutes, which repeals assignee’s standing to recover attorney’s fees under section 627.428, does not apply in instant case where both issuance of policy and assignment agreement predated effective date of statute — Whether relevant date for purposes of applying statute is date policy was issued or date assignment agreement was entered into need not be resolved under circumstances — Motion to strike plaintiff’s claims for attorney’s fees is denied
  • Torts — Dog bite — Negligence — Sheriffs — Sovereign immunity — Action alleging deputy sheriff was negligent in handling K-9 that bit plaintiff while attending a public event — Trial court erred in dismissing complaint against sheriff on ground that action was barred by sovereign immunity — Although a plaintiff may not rely on section 767.04 when suing a state agency for a dog bite because it is a strict liability statute, a plaintiff may bring such a suit in common-law negligence — Complaint adequately stated a cause of action for negligence under common law principles — Court rejects argument that plaintiff placed himself in zone of risk by approaching area occupied by deputy and police dog, and that because deputy did not move in proximity to plaintiff there was no zone of risk created by conduct of deputy — Deputy created the zone of risk by patrolling the venue with his K-9 — Whether the deputy was walking around or standing still was irrelevant — Because plaintiff was in a public location he had the right to walk where he wanted, including right up to the deputy, and, unless warned by the deputy to move away, plaintiff had a reasonable expectation that the dog would not bite him — Lawsuit was not barred by sovereign immunity where, although the decision to patrol the public venue with K-9s may have been a discretionary function, the act of patrolling the venue with K-9s was operational

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2022 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982