5D02-2961 Rosati v. Vaillancourt

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-2961

Case Date: 06/30/2003

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2003 ROBERT ROSATI, Appellant, v. NANCY B. VAILLANCOURT, et al., Appellees. / Opinion Filed July 3, 2003 Appeal from the Circuit Court for Volusia County, William C. Johnson, Jr., Judge. Bruce A. Hanna and Robert Taylor Bowling of Cobb & Cole, Daytona Beach, for Appellant. Eric S. Zufelt and Scot E. Samis of Abbey, Adams, Byelick, et al., St. Petersburg, for Appellee Anthony Rosati. No Appearance for Appellee, Nancy B. Vaillancourt. PLEUS, J. Robert Rosati (Robert) appeals from a final order denying his motion for determination of entitlement to attorney's fees and costs. Robert rented a car from Alamo. While the Alamo car was being operated by a permissive user, Robert's brother Anthony, it collided with a car operated by Nancy Vaillancourt. Vaillancourt sued Anthony, Robert and Alamo for her injuries. Vaillancourt failed to obtain service of process on Robert and the court dismissed the action against Robert. Case No. 5D02-2961

However, Vaillancourt's action against Anthony and Alamo proceeded, and Alamo brought a third-party complaint against Robert and a crossclaim against Anthony, seeking indemnification from both. Anthony filed a crossclaim against Alamo seeking indemnification. Robert filed a crossclaim against Anthony seeking indemnification, including costs and attorney's fees. Vaillancourt settled with Alamo and thereafter voluntarily dismissed with prejudice her complaint as to Alamo. Alamo voluntarily dismissed with prejudice its third-party complaint against Robert and its crossclaim against Anthony. Anthony voluntarily dismissed with prejudice his crossclaim against Alamo. However, Robert did not dismiss his crossclaim for indemnification against Anthony. Robert filed a motion for determination of entitlement to attorney's fees and costs based upon a common law theory of indemnification. Robert claimed entitlement to indemnification from Anthony for attorney's fees and costs incurred in his defense. The trial court denied Robert's motion on the ground that Robert had not expended any funds for attorney's fees and costs. The trial court further found that Robert's insurance carrier, Arbella, expended the funds for attorney's fees and costs but that Arbella, pursuant to the non-joinder statute, section 627.4136, Florida Statutes (2002), was not a party to the lawsuit. Robert asserts that the non-joinder statute did not preclude his claim for recovery of attorney's fees and costs against Anthony based on principles of common law indemnification. Section 627.4136(1), Florida Statutes, provides the general prohibition against joining a liability insurer as a party: It shall be a condition precedent to the accrual or 2

maintenance of a cause of action against a liability insurer by a person not insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy. The operative provision applicable to the instant case, which was engrafted upon the statute in 1992, is found at subsection (2): Notwithstanding subsection (1), any insurer who pays any taxable costs or attorney's fees which would be recoverable by the insured but for the fact that such costs or fees were paid by the insurer shall be considered a party for the purpose of recovering such fees or costs. Under subsection (2), an insurer who pays taxable costs or attorney's fees which would be recoverable by the insured had the insured paid them, is considered a party for the purpose of recovering such fees or costs. The initial inquiry then concerns whether the sums expended by Arbella for costs and attorney's fees in defense of its insured Robert would have been recoverable by Robert had he himself actually paid such sums. This requires consideration of principles of common law indemnity. Indemnity is a right which inures to one who discharges a duty owed by him but which, as between himself and another, should have been discharged by the other. Houdaille Industries, Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979). To succeed on a claim of common law indemnity, a party must show that it was wholly without fault and that its liability was purely vicarious, derivative or technical. Id.; Doles v. Koden International, Inc., 779 So. 2d 609 (Fla. 5th DCA 2001). Robert asserts that as lessee of the motor vehicle, his liability was purely derivative or vicarious. The dangerous instrumentality doctrine imposes liability on the part of owners and 3

lessees for the negligence of operators of motor vehicles. Susco Car Rental System v. Leonard, 112 So. 2d 832 (Fla. 1959). Because their liability is purely vicarious, both Alamo and Robert would be entitled to common law indemnity from the actively negligent tortfeasor. Allstate Insurance Co. v. Value Rent-A-Car, 463 So. 2d 320 (Fla. 5th DCA 1985). See also McDowell v. Rodriguez, 822 So. 2d 14 (Fla. 5th DCA 2002), rev. denied, Case No. 02-1560 (Fla. Mar. 3, 2003); Budget Rent-A-Car Systems, Inc. v. State Farm Mutual Automobile Ins. Co., 727 So. 2d 287 (Fla. 2d DCA 1999). This right to indemnification includes not only the amount of any judgment entered against the indemnitee, but also recovery of reasonable attorney's fees and costs incurred as a result of the lawsuit brought against the indemnitee due to the indemnitor's active negligence.1 American and Foreign Insurance Co. v. Avis Rent-A-Car System, Inc., 401 So. 2d 855 (Fla. 1st DCA 1981); Insurance Company of North American v. King, 340 So. 2d 1175 (Fla. 4th DCA 1976). See also Continental Casualty Co. v. City of South Daytona, 807 So. 2d 91 (Fla. 5th DCA 2002). Anthony does not quarrel with these general principles of indemnity law but rather argues that he was not the proper target of Robert's request for recovery of attorney's fees and costs. Anthony's position is predicated on a ruling by the trial court that Alamo's rental contract failed to shift primary liability under Florida's Financial Responsibility Act to Robert. Under section 627.7263, Florida Statutes, the lessor's liability insurance is primary unless the rental agreement validly shifts primary responsibility to the lessee. Alamo's rental agreement

Attorney's fees incurred in establishing the right to indemnification, however, are not recoverable. Continental Casualty, 807 So. 2d at 93. 4

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was deemed not to satisfy the requirements of the statute 2 so that Alamo had to provide primary liability insurance coverage (the first $10,000). Anthony asserts that since Alamo did not validly shift primary liability coverage to Robert, Alamo was responsible for the duty of defense of Vaillancourt's claim, as well as for Vaillancourt's claim up to $10,000 (which the damages in this case did not exceed). According to Anthony, if Robert incurred attorney's fees and costs for his defense, his claim for recovery is against Alamo and not him. Anthony adds: Common law indemnity imposes ultimate liability and duty to defend on an active tortfeasor. However, that doctrine can not apply when it would operate to frustrate the specific purpose or statute which imposes primary liability and duty to defend on a specific party. That is exactly what Fla. Stat.

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