4 Fla. L. Weekly Supp. 844a
Insurance — Automobile — Property damage — Insurer who has accepted insured’s rights to proceed against tortfeasor through subrogation has no duty to assert insured’s claim for deductible or to account or pay its insured from any recovery obtained from tortfeasor or tortfeasor’s insurer — By electing to proceed against collision insurer instead of against tortfeasor, and by assigning rights to proceed against tortfeasor to insurer, insured elected to assume burden of recovering the deductible
RICKY GONZALEZ, etc., Plaintiff, v. MIDLAND RISK INSURANCE COMPANY, Defendant. 11th Judicial Circuit in and for Dade County, General Jurisdiction Division. Case No. 96-11786 CA 13. July 7, 1997. David Tobin, Judge.
FINAL JUDGMENT AND ORDER OF DISMISSAL
THIS CAUSE came on to be heard on June 24, 1997 upon defendant’s motion to dismiss, and the Court having heard argument from counsel and it being otherwise fully advised in the premises, it is hereupon,
ORDERED AND ADJUDGED
1. This action was brought by plaintiff as an insured of defendant, Midland Risk Insurance Company. On or about July 20, 1995, plaintiff’s automobile was damaged in an accident. The plaintiff asserted a claim against defendant for collision benefits under defendant’s policy. Defendant paid plaintiff’s property damage less a $500 deductible provided by the policy.
2. As part of the resolution of the plaintiff’s claim against defendant, insurer defendant obtained subrogation rights (from its insured, plaintiff) allowing it to claim and recover against the tortfeasor’s insurer.
3. Plaintiff has alleged in the complaint:
10. MIDLAND recovered under the subrogation claims from the third party insurance carrier and retained the full amount of the recovery without reimbursing the Plaintiffs the amount of the deductible.
4. The following issue appears to be one of first impression in Florida:
Whether an insurance company, once it has accepted an insured’s rights to proceed against a tortfeasor through subrogation, is required to assert the insured’s claim for the deductible, and to account and pay to its insured from any recovery realized from the tortfeasor (or the tortfeasor’s insurer).
5. This Court finds that an insurer HAS NO DUTY to assert its insured’s claim for the deductible, or to account or pay its insured from a recovery from the tortfeasor within the amount of damage the insurer paid its insured. Under these circumstances, by electing to proceed against the collision insurer instead of against the tortfeasor, and having assigned his rights to proceed against the tortfeasor through subrogation agreement, the plaintiff has elected to assume the burden of recovering the deductible on his own.
6. Accordingly, defendant’s motion to dismiss is hereby GRANTED. Plaintiff’s complaint is dismissed with prejudice. Plaintiff shall go hence without day.
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