27 Fla. L. Weekly Supp. 1047a
Online Reference: FLWSUPP 2712APERInsurance — Insured’s action against insurer — Indispensable parties — Insurer’s motion to dismiss, for failure to join indispensable party, an action alleging breach of contract brought by a plaintiff who was one of two persons the policy named as covered and insured, is denied — Failure to join a potential joint obligee is insufficient to dismiss instant litigation because of outstanding factual issues that must be determined, including whether the other named insured’s interest is adverse to that of plaintiff’s interest under an agency theory or whether the other named insured has any objection to case proceeding without him
ADELAIDA PEREZ, Plaintiff, v. SAFEPOINT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 19-19583 COCE 53. February 17, 2020. Robert W. Lee, Judge. Counsel: Natalie Fernandez, Coral Gables, for Plaintiff. Cecile M. von Batemberg, Coral Gables, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
THIS Cause came before the Court on January 17, 2020 for hearing of the Defendant’s Motion to Dismiss Plaintiff’s Complaint, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows1:
Background: On August, 07, 2019 Plaintiff, ADELAIDA PEREZ (“Perez”), filed a complaint against Defendant, SAFEPOINT INSURANCE COMPANY (“Safepoint”) claiming breach of contract. Defendant Safepoint timely filed its Motion to Dismiss on September 25, 2019. A hearing on the Motion to Dismiss was held on January 17, 2020. At the hearing, Defendant’s counsel relied on the insurance policy which was the basis of Plaintiff’s claim. The insurance policy named two persons as covered and insured, Adelaida Perez and Vicente Medina. The grounds for Defendant’s Motion to Dismiss is based on a failure to join an indispensable party. Fla. R. Civ. P. 1.140(b)(7). The court reserved ruling pending receipt of supporting case law from the parties within seven days. Neither party, however, provided any additional authority although being provided time to do so.
Conclusions of Law: Failure to join an indispensable party may be raised in a motion to dismiss. Fla. R. Civ. P. 1.140(b)(7). Indispensable parties are any necessary parties that absent their participation would cause a “final decision [. . .] rendered without their joinder” to effect “either that party’s interests or the interests of another party in the action.” Hertz Corp. v. Piccolo, 453 So.2d 12 (Fla. 1984); Diaz v. Impex of Doral, Inc., 7 So. 3d 591 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D601a]. Generally, “[a]ll parties united in interest, or whose interests are involved in the matter to be adjudicated in a suit on an insurance policy must be joined.” 46A C.J.S. Insurance § 2146 (2020). See also 39 Fla.Jur.2d Parties § 13 (2019).
In Martinez v. Balbin, the judgment creditor sought a claim against a decedent’s estate. Trustee, an heir at law for the estate, subsequently “assigned all right, title and interest in the estate to the other heirs as a purported gift.” 76 So.2d 488 (Fla. 1954). Plaintiff then sought a placement of a trust in Plaintiff’s favor. Id. The Florida Supreme Court held, all heirs at law who received from the trustee must be included as “indispensable parties.” Id. However, Martinez is distinguishable because there the parties sought to be joined were additional defendants while the instant case seeks to join additional plaintiffs. Moreover, in the instant case, the defendants have not shown that Perez’s interest risks “inconsistent judgment” or would lead to “multiple recoveries.” See Wilson v. EverBank, N.A.,77 F.Supp.3d 1202 (S.D. Fla. 2015) (holding that failure to join a spouse as an indispensable party is insufficient to grant an order for motion to dismiss when the spouses’ “interests are aligned and their legal claims are the same” and “the current composition of the parties [. . .] does not risk any inconsistent judgment or multiple recoveries).
The case of Phillips v. Choate is more on point. 456 So.2d 556 (Fla. 4th DCA 1984). In Phillips, the Fourth District Court of Appeal held,
To say that a court “must” dismiss in the absence of an indispensable party and that it “cannot proceed” without him puts that matter the wrong way around: a court does not know whether a particular person is “indispensable” until it has examined the situation to determine whether it can proceed without him
456 So.2d at 557-58 (quoting Provident Tradesmens B & T Co. v. Patterson, 390 U.S. 102, 119 (1968)). The proper issue then is whether “a lawsuit [. . .] can proceed without a particular joint obligee.” Id.
In holding that a missing plaintiff with a similar interest to other plaintiffs was not an indispensable party, the court concluded there were only two plausible scenarios in continuing with the case, and neither would prejudice the defendant. Id. First, the defendant’s claim might prevail and the defendant might “face subsequent litigation by” the missing plaintiff “on substantially the same claim.” Id. at 558. The court found this risk insufficient to prevent litigation from moving forward because “a court ought not dismiss an action on the grounds of failure to join an indispensable party if dismissal would foreclose the claim of the present plaintiffs and the only adverse result of failure to dismiss is a possible subsequent action against the defendant by the missing party.” Id. The court reasoned a lower court “might condition maintenance of this action” on present plaintiff’s “indemnifying” the defendant “upon a successful defense against a substantially similar claim” from claims an absent plaintiff “might make at some future date.” Id. Alternatively, the plaintiff could prevail and the court can direct the defendant “to pay into the registry of the court whatever percentage the entire [. . .] interest in the proceeds of the sale is.” Id. at 559. This Court agrees that failure to join a potential joint obligee in this case is insufficient to dismiss the instant litigation because of the outstanding factual issues that must be determined. See Ultra Contractors, LLC v. Federated Nat’l Ins. Co., 26 Fla. L. Weekly Supp. 363a, ¶17 (10th Cir. 2018) (case should not be dismissed for failure to have a spouse joined as a co-plaintiff when factual issues remain). In the instant case, it remains to be seen whether Medina’s interest is truly adverse to that of Perez under an agency theory or otherwise, or whether Medina has any objection to this case proceeding without him. Accordingly, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion to dismiss is DENIED. The Defendant shall file an answer within 15 days of the date of this Order.
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1The Court thanks Nova Southeastern University judicial intern Jesus Caro for his research assistance on the issues raised in this Motion.
