9 Fla. L. Weekly Supp. 774b
Insurance — Standard Mortgage Clause in policy creates separate and distinct contract between insurance company and lien holder, and lien holder is permitted to recover under circumstances and conditions that would defeat recovery by insured — Insurer’s act of making payment to lien holder after filing of instant action does not constitute a confession of judgment — Motion for summary judgment and entitlement to attorney’s fees denied
ROLANDO GIRON, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court in and for Miami-Dade County. Case No. 00-8717 CC-25(1). General Jurisdiction Division. October 10, 2002. Wendell M. Graham, Judge. Counsel: Tony S. Sirven, Sirven & Adams, P.A., Hialeah. Rima C. Bardawil, Law Offices of Rima C. Bardawil, P.A., Miami. James E. Zloch, Wicker, Smith, et al., Ft. Lauderdale.
ORDER DENYING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND ENTITLEMENTTO ATTORNEY’S FEES
THIS CAUSE having come on before the Court October 3, 2002, upon the Plaintiff’s Motion for Summary Judgment and Entitlement to Attorney’s Fees and Costs. Having heard argument of counsel and being otherwise fully advised in the premises, the court makes the following findings of fact and conclusions of law:
1. On April 20, 2001, the Plaintiff served a Motion for Summary Judgment and Entitlement to Attorney’s Fees. The basis of the Motion was Defendant’s payment to the lien holder, Eastern Financial, after the filing of this action. Plaintiff’s Motion for Summary Judgment was denied by order dated April 2, 2001.
2. Plaintiff’s Motion for Summary Judgment and Entitlement to Attorney’s Fees was again argued on October 9, 2001, and again Plaintiff’s Motion was denied pursuant to order dated October 9, 2001.
3. A certified copy of the subject insurance policy has been filed with the Court.
4. The Court has reviewed the subject insurance policy and specifically finds that the policy contains a Standard Mortgage Clause. The Court specifically finds that the Standard Mortgage Clause in the subject insurance policy creates a separate and distinct contract between the insurance company and the lien holder. The Court further specifically finds that the Standard or Union Mortgage Clause in the subject insurance policy gives the lien holder a separate and independent contractual status toward the insurer as to permit recovery under circumstances and conditions that would defeat a recovery by the insured.
5. The Court specifically finds that the payment by the Defendant to the lien holder, Eastern Financial, after the filing of the subject action, does not constitute a confession of judgment because the Standard or Union Mortgage Clause contained within the subject insurance policy constitutes a separate and distinct contract between Defendant, State Farm Mutual Automobile Insurance Company, and the lien holder, Eastern Financial, from that between State Farm and the Plaintiff. See, National Casualty Company v. General Motors Acceptance Corporation, 161 So.2d 848 (Fla. 1st DCA 1964). Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant’s motion for summary judgment and entitlement to attorney’s fees is one and the same DENIED.
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