19 Fla. L. Weekly Supp. 469c
Online Reference: FLWSUPP 1906VIEIInsurance — Fourth amended third-party complaint against insurer is dismissed with prejudice — Common law claim for contribution or indemnity is barred by economic loss rule, and insurance contract to which complaint refers pertains to real property that is not subject of litigation
DEUTSCHE BANK NATIONAL TRUST, etc., Plaintiff/Counter-Claim Defendant, vs. JAGRANIE VIEIRA, et al., Defendants/Cross and Counterclaimants, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., etc., Cross-claim Defendant. JAGRANIE VIEIRA, Third-Party Plaintiff, vs. GMAC MORTGAGE, LLC, a foreign corporation, and STATE FARM FLORIDA INSURANCE COMPANY, a Florida corporation, Third-Party Defendants. Circuit Court, 5th Judicial Circuit in and for Marion County. Case No. 07-2684-CA-G. August 27, 2010. Honorable Brian D. Lambert, Judge. Counsel: Mike Kurek, Tampa, for Plaintiff/Counter-Claim Defendant. Michael Massey, Gainesville, for Third-Party Plaintiff. Lee Craig and Timothy R. Engelbrecht, Butler Pappas Weihmuller Katz Craig, LLP, Tampa, for Third-Party Defendants, State Farm. D. Brian O’Dell and Christian W. Hancock, Birmingham, AL, for Third-Party Defendants, GMAC.
FINAL JUDGMENT OF DISMISSAL, WITHPREJUDICE, OF THE FOURTH AMENDEDTHIRD-PARTY COMPLAINT AGAINST THETHIRD-PARTY DEFENDANT, STATE FARMFLORIDA INSURANCE COMPANY, ONLY
The Court has reviewed this file and the Motion to Dismiss with Prejudice filed by STATE FARM FLORIDA INSURANCE COMPANY against the Third-Party Plaintiff regarding the Fourth Amended Third-Party Complaint. Because there is no factual basis, of record, to support a common law claim for contribution or a claim for common law indemnity for breach of the insurance contract because Count III is barred by the Economic Loss Rule and, lastly, clearly, the insurance contract that the Third-Party Plaintiff refers to pertains to real property that is not the subject of this litigation and as the Court has given the Third-Party Plaintiff five opportunities to state a valid cause of action, the Court finds it appropriate, at this point, to dismiss the Third-Party action against STATE FARM with prejudice. See Gladstone v. Smith, 729 So.2d 1002, 1004 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D866a]; Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992). It is, therefore,
ORDERED AND ADJUDGED:
1. The Third-Party action filed by the Third-Party Plaintiff, VIEIRA, against the Third-Party Defendant, STATE FARM FLORIDA INSURANCE COMPANY, is dismissed with prejudice. This Third-Party Defendant’s Motion for Protective Order is now moot as it is no longer a party to this case and is not presently obligated to respond to the discovery requests propounded upon it as a party.
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