19 Fla. L. Weekly Supp. 260a
Online Reference: FLWSUPP 1904SKINInsurance — Underinsured motorist — In action for contractual subrogation of underinsured motorist benefits, requirement that insurer obtain release from its insured is not applicable — Requirement exists, if at all, only in claims for equitable subrogation
STATE FARM MUTUAL AUTOMOBILE INS. CO. as Subrogee of EUGENE W. SKINNER, JR., Plaintiff, vs. KIARA ARCAI-SHANEE ALSTON, an Individual and ANGELA JACKSON DAVIS, an Individual, AKA ANGELA EVETTE DAVIS, Defendants. Circuit Court, 4th Judicial Circuit in and for Duval County. Case No. 2010-CA-001405, Division CV-B. November 28, 2011. Frederick B. Tygart, Judge. Counsel: Jennifer L. Reiss, Hiday & Ricke, P.A., Jacksonville, for Plaintiff. Pamela H. Klavon, Jacksonville, for Defendants.
ORDER DENYING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT
This case is before the Court on the Defendant’s Motion for Summary Judgment. The record shows that on January 28, 2010, the Plaintiff filed the instant lawsuit against the Defendant, for the contractual subrogation of underinsured motorist benefits, paid to Plaintiff’s named insured as a result of an automobile accident that occurred on September 19, 2007. In its complaint the Plaintiff alleges that the right of subrogation is contractual, and arises from the policy of insurance between the Plaintiff and its insured. In its answer to Defendant’s Request for Admissions, the Plaintiff admits that it did not obtain a release from its insured for the benefit of the Defendants. Defendant’s Motion for Summary Judgment stems from Plaintiff’s admission that it did not obtain a release in favor of Defendants from its insured, Plaintiff is now barred from bringing the underlying action for contractual subrogation.
The Defendants rely upon the case of State Farm Mut. Auto. Ins. v. Johnson, 18 So.3d 1099 (Fla. 2d D.C.A. 2009) [34 Fla. L. Weekly D412b] in support their argument that Plaintiff’s failure to obtain a release from its insured precludes Plaintiff from brining this instant action. The court finds that Defendants’ reliance on Johnson in the instant lawsuit is improper and without merit. The Defendants cite Johnson to establish the elements and bases of equitable subrogation, and for the premise that “In tort cases, the party seeking equitable subrogation must have obtained a release for the other party responsible for the debt.”
The Johnson court explains that “Florida recognizes two types of subrogation: conventional or contractual subrogation and equitable or legal subrogation. Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999) [24 Fla. L. Weekly S71a]. Conventional or contractual subrogation arises from a contract between the parties establishing an agreement that the party paying the debt will have the rights and remedies of the original creditor. Equitable or legal subrogation is not created by a contract but by the legal consequences of the acts and relationships of the parties. Id. at 646. The doctrine is based on the policy that no person should benefit by another’s loss, and it “may be invoked wher-ever justice demands its application, irrespective of technical legal rules.” West Am. Ins. Co., 495 So. 2d at 207.” Id. The lawsuit in the Johnson case was one for equitable subrogation. The reasoning and holding in Johnson and its predecessor cases reflect the fact that the underlying claims in those cases were for equitable subrogation, filed outside the standard four (4) year statute of limitations applicable to contractual subrogation cases. It is undisputed that the case at bar was filed within the four (4) year statute of limitations.
Plaintiff contends that Johnson inapplicable in the case at bar as this is an action for contractual subrogation, not equitable subrogation. The court finds that the record reflects that Plaintiff’s complaint alleges a cause of action for contractual subrogation and that the holding in Johnson is inapplicable in the case at bar.
Defendant then relies upon the case of Welch v. Complete Care Corp., 818 So. 2d 645, 648 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D1337a], in support of its argument that Plaintiff’s claim for equitable subrogation against Defendants fails as Plaintiff did not obtain a release of the Defendants from its insured. The court finds that Defendants reliance on Welch in the case at bar is misplaced as Welch, Id. like Johnson, Supra., is premised upon a claim for equitable subrogation and inapplicable to the case at bar.
After having reviewed the record, hearing argument of counsel, and review of the case law, the Court concludes that the case at bar is one for contractual subrogation, that Plaintiff has not stated any claims for equitable subrogation, and that there is no basis, in law or in fact, for the contention that the Plaintiff must obtain a release of the Defendants’ from its insured before bringing a claim for contractual subrogation. Such a requirement exists, if at all, solely in claims for equitable subrogation.
Therefore, it is ORDERED:
The Motion for Summary Judgment filed by the Defendant’s is hereby DENIED.
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