5 Fla. L. Weekly Supp. 248a
Insurance — Third-party actions — Indemnity — Insured/third-party plaintiff’s complaint alleging that insurer/third-party defendant issued policy of insurance to insured insuring property, that insured was covered for damages caused by sinkhole for insured property, that plaintiffs filed action against insured alleging a defect in property sold to plaintiffs by insured causing damages as a result of sinkhole, that prior to transferring property to plaintiffs insured filed claim against insurer for sinkhole damage, that insurer denied claim, and that in event plaintiffs prevail in action for damages as result of sinkhole insurer is liable to insured for amount of damages awarded to plaintiffs as result of sinkhole — Complaint states cause of action for indemnity — Even if third-party complaint is vague or ambiguous with regard to theory under which third-party defendant may be held liable, such defects are not grounds for dismissal for failure to state a cause of action — Motion to dismiss third-party complaint denied where third-party complaint contains sufficient allegation of ultimate fact to state a cause of action affording relief, if ultimately proved
JOHN S. PATTERSON and CASSANDRA E. PATTERSON, Plaintiffs, v. LES HANLY, LOIS HANLY, CONTECH RESTORATION SERVICES, INC., CONTECH ENTERPRISES, INC. and NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendants. LES HANLY and LOIS HANLY, Third Party Plaintiffs, v. ALLSTATE INSURANCE COMPANY and FRANK BRAGANO, d/b/a CONTECH RESTORATION SERVICES, INC., Third Party Defendants. 13th Judicial Circuit in and for Hillsborough County, General Civil Division. Case No. 96-5223, Division O. October 17, 1997. William Fuente, Judge. Counsel: Edwin Peck, St. Petersburg, for Third Party Plaintiffs. Stephen K. Stuart, Stuart, Strickland, Caglianone & Miller, P.A., Tampa, for Third Party Defendants.
ORDER DENYING THIRD PARTY DEFENDANT’S AMENDED MOTION TO DISMISS
THIS CAUSE came before the Court for hearing on October 1, 1997 on Third Party Defendant’s Amended Motion to Dismiss. Having considered the motion, arguments of counsel, and being otherwise informed in the premises, the Court denies Third Party Defendant’s motion for the reasons that follow.
RELEVANT FACTS
Third Party Defendant, Allstate Insurance Company, issued a policy of insurance to Third Party Plaintiffs Les and Lois Hanly insuring the property located at 11304 Tralee Drive, Riverview, Hillsborough County, Florida. Pursuant the policy of insurance, Third Party Plaintiffs were covered for damages caused by a sinkhole for the insured property. Plaintiffs John and Cassandra Patterson filed an action against Third Party Plaintiffs alleging a defect in the property sold to them by the Third Party Plaintiffs, which caused damages as a result of a sinkhole. Prior to transferring the subject property to the Plaintiffs, Third Party Plaintiffs filed a claim against Allstate Insurance Company for sinkhole damage. Allstate Insurance Company denied the claim. Third Party Plaintiffs allege that in the event that Plaintiffs prevail in their action for damages as a result of the sinkhole, Third Party Defendant is liable to Third Party Plaintiffs for the amount of damages awarded to Plaintiffs as a result of the sinkhole, on a theory of indemnity. (See Third Party Complaint, paras. 3-7).
DISCUSSION
“For purposes of a motion to dismiss for failure to state a cause of action, the allegations of the complaint are assumed to be true and all reasonable inferences therefrom are allowed in favor of the plaintiff.” Ralph v. City of Daytona Beach, 471 So. 2d 1, 2 (Fla. 1983) (emphasis added). The allegations discussed above are contained in the Third Party Complaint. For purposes of Third Party Defendant’s Motion to Dismiss for failure to state a cause of action, this Court must assume the veracity of these allegations and allow all reasonable inferences therefrom to favor Third Party Plaintiffs. Where a complaint contains allegations sufficient to acquaint the defendant with the plaintiff’s charge, so that defendant can answer the complaint intelligently, a court would err in dismissing the complaint on the ground that more specific allegations are necessary. Fontainbleau Hotel Corp. v. Walters, 246 So. 2d 563, 565 (Fla. 1971) (citations omitted). The Third Party Complaint sufficiently acquaints Third Party Defendant of the charge against it.
“A motion to dismiss for failure to state a cause of action does not reach the defects of a vague and ambiguous pleading.” Id. “Likewise under our rules of civil procedure, it is not necessary for the plaintiff to state the theory of his case in his pleading.” Id. Third Party Defendant contends that there are only three causes of action which Third Party Plaintiffs could assert against it, namely, contribution, indemnity and subrogation. Third Party Defendant argues that “[n]one of these theories applies under the present circumstances.” (See Amended Motion to Dismiss). Even if the Third Party Complaint is vague or ambiguous with regard to the theory under which Third Party Defendant may be held liable, such defects are not grounds for dismissal for failure to state a cause of action. “[I]t is the facts alleged, the issues and proof, and not the form of the prayer for relief, which determine the nature of the relief to be granted.” Id. at 565-6 (quoting Chasin v. Richey, 91 So. 2d 811, 812 (Fla. 1957)).
Florida Rule of Civil Procedure 1.110 requires that a pleading must only set forth jurisdictional grounds, “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief,” and a prayer for relief. See Dawson v. Blue Cross Association, 293 So. 2d 90, 92 (Fla. 1st DCA 1974). The sole issue for this Court to determine in considering Third Party Defendant’s motion is “whether the complaint . . . [contains] sufficient allegations of ultimate fact to state a cause of action affording relief, if ultimately proved.” Id. at 93 (emphasis added). In Dawson, supra, a case with similar facts, the court concluded that the complaint stated a cause of action. The complaint alleged a contract of insurance, in full force and effect, issued by the defendants under which plaintiffs were insured. Additionally, the complaint alleged that a demand was made for payment of benefits under the policy, and said demand was refused by the insurance company. The policy of insurance was attached as an exhibit to the complaint. Id. at 91. In the instant case, essentially the same allegations were contained in the Third Party Complaint, and a copy of the declaration pages of the insurance policy was attached as an exhibit. Therefore, the Third Party Complaint contains “sufficient allegations of ultimate fact.” “If a complaint states a cause of action on any ground, a motion to dismiss the complaint for failure to state a cause of action should be denied.” Bond v. Koscot Interplanetary, Inc., 246 So. 2d 631, 633 (Fla. 1st DCA 1971) (emphasis supplied). A third party complaint “must allege a claim for indemnification, subrogation or contribution against the third-party defendant.” Tindall v. Travelers Indemnity Co., 613 So. 2d 1369, 1370 (Fla. 2d DCA 1993); See also Leggiere v. Merrill Lynch Realty, 544 So. 2d 240, 241 (Fla. 2d DCA 1989) (a defendant seeking to assert a derivative third-party claim must first allege a cause of action based on indemnification, subrogation or contribution). The principles of subrogation and contribution are inapplicable to the case at bar. Third Party Plaintiffs have not stated a cause of action based on a subrogation or contribution claim. However, the Third Amended Complaint sufficiently alleges a claim for indemnification, notwithstanding the fact that this “theory” is not identified in the pleading.
Subrogation is defined as the substitution of one party for another regarding a claim or right. Subrogation affords relief where one is required to pay a legal obligation which should have been paid by another. In the insurance context, an insurer generally becomes subrogated to the right of action of the insured to the extent of the insurer’s payment. The “insurer’s right of action refers to the cause of action which the insured may have had against the party or parties causing the loss which necessitated payment by the insurer.” 31A Fla. Jur. 2d. “Insurance,” §2445, and cases cited therein (emphasis added). The doctrine of subrogation is not applicable to the instant case because the right of subrogation attaches to the insurer and not the insured. See id. §§ 3445-3466 and cases cited therein; See also First American Title Insurance Company, Inc. v. First Title Service Company of the Florida Keys, Inc., 457 So. 2d 467, 473 (Fla. 1984) (title insurer stands in the place of its insured under the doctrine of subrogation). Likewise, the theory of contribution is inapplicable to the instant case because Third Party Defendant is not a “joint tort-feasor.” See § 768.31, Fla. Stat. (1995). A cause of action under the Uniform Contribution Among Tortfeasors Act does not accrue until the tort-feasor who seeks contribution has paid more than his pro rata share of common liability. Hyster Company v. David, 612 So. 2d 678, 680 (Fla. 1st DCA 1993).
“An insurance contract is in nature a contract for indemnification.” Tindall v. Travelers Indemnity Co., 613 So. 2d 1369, 1370 (Fla. 2d DCA 1993) (emphasis added). Impleader of an insurance carrier which has denied coverage is permissible. Id. (citing Skevolfilax v. Quigley, 810 F. 2d 378, 386 n.6 (3d Cir.), cert. denied, 481 U.S. 1029 (1987)). The Third Party Complaint alleges the “ultimate facts” necessary to state a cause of action based on indemnification. It alleges that (1) Allstate Insurance Company issued a policy of insurance to Third Party Plaintiffs insuring the subject property; (2) pursuant the policy of insurance, Third Party Plaintiffs were covered for damages caused by a sinkhole for the insured property; (3) Plaintiffs filed an action against Third Party Plaintiffs alleging a defect in the property sold to the Plaintiffs by the Third Party Plaintiffs, causing damages as a result of a sinkhole; (4) prior to transferring the subject property to the Plaintiffs, Third Party Plaintiffs filed a claim against Allstate Insurance Company for sinkhole damage; (5) Allstate Insurance Company denied the claim; and (5) in the event that Plaintiffs prevail in their action for damages as a result of the sinkhole, Third Party Defendant is liable to Third Party Plaintiffs for the amount of damages awarded to Plaintiffs as a result of the sinkhole. (See Third Party Complaint, paras. 3-7). The Court must assume that these allegations are true and draw all reasonable inferences therefrom in favor of Third Party Plaintiffs. See Ralph v. City of Daytona Beach, 471 So. 2d 1, 2 (Fla. 1983). Accordingly, the Third Party Complaint states a cause of action upon which relief can be granted. It is therefore
ORDERED and ADJUDGED that Third Party Defendant’s Motion to Dismiss be, and is, DENIED.
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