6 Fla. L. Weekly Supp. 50b
Insurance — Subrogation — Third party claim — Defendant in action involving subrogation claim for insurance benefits paid by insurer could not bring third party claim against insured in absence of claim for indemnity — Because third party claim against insured was improperly joined, misjoinder occurred — Misjoinder is grounds to sever improperly joined third party claim, rather than grounds for dismissal — Third party defendant’s motions for judgment on pleadings and dismissal denied
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, vs. PEOPLE’S GAS SYSTEMS, INC., and AVERY L. JONES, Defendants. PEOPLE’S GAS SYSTEMS, INC., Third Party Plaintiff, vs. MICHELLE MOFFETT, Third Party Defendant. County Court, 17th Judicial Circuit, in and for Broward County. Case No. 98-1781 COCE 56. September 14, 1998. Robert W. Lee, Judge.
ORDER ON THIRD-PARTY DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS AND THIRD-PARTY DEFENDANT’S MOTION TO DISMISS THIRD-PARTY COMPLAINT WITH DIRECTIONS TO CLERK
THIS CAUSE came before the Court on September 11, 1998 for hearing of the above Motions, and the Court’s having reviewed the Motions and Court file, heard argument of counsel, and been otherwise advised in the premises, rules as follows:
This case involves a subrogation claim for insurance benefits paid by the Plaintiff State Farm, as subrogee of Michelle Moffett. Defendant sought to bring a claim against Moffett; however, because Moffett is not a party to this action, the Defendant could not bring a counterclaim against her. Accordingly, the Defendant attempted to bring her into this case with a third-party claim. The Defendant now agrees that the third-party claim is improper because no claim for indemnity exists. See Dacryn Corporation v. Peacock, 630 So.2d 1169, 1170 (Fla. 2d DCA 1993) (third-party claim cannot exist in absence of a claim for indemnity). The question then arises as to the proper remedy in this case. Third-Party Defendant argues that she should either receive a judgment on the pleadings, or the third-party claim should be dismissed. The Defendant, however, argues that the claim should be severed under Rule 1.250(a), Fla. R. Civ.P., the rule dealing with misjoinder.
Neither counsel nor the Court could find a case specifically applying Rule 1.250(a) to a third-party claim. In its broadest sense, misjoinder is the “improper joining together … of different causes of action.” Black’s Law Dictionary 750-51 (5th ed. 1979). In this case, the cause of action against Moffett is improperly joined. Accordingly, this Court concludes that a misjoinder occurred. Under Florida law, misjoinder is not grounds for dismissal; rather the Court is to sever the action. See Alanco v. Bystrom, 544 So.2d 217, 218 (Fla. 3d DCA 1989). Accordingly, it is hereby
ORDERED AND ADJUDGED that the Court denies Third-Party Defendant’s Motions. However, the Court hereby severs the Third-Party Claim from the underlying action. The Clerk of the Court is hereby directed to open the Third-Party Claim as a separate case, but assigned to this same division.
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