5D06-3713 Metropolitan v. Tepper

SUPREME COURT CASES

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D06-3713

Case Date: 10/15/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2007

METROPOLITAN CASUALTY INSURANCE COMPANY, Appellant, v. ROBERT TEPPER, et al., Appellees. ________________________________/ Opinion filed October 19, 2007 Appeal from the Circuit Court for Flagler County, Raul A. Zambrano, Judge. Michael M. Bell and Mary Grace Dyleski, of Bell, Leeper & Roper, P.A., Orlando, for Appellant. Edward E. Haenftling , Jr., of Edward Haenftling, Jr., P.A., Daytona Beach, and Chobee Ebbets of Chobee Ebbets, P.A., Daytona Beach, for Appellee Angel M. Lucas. No Appearance for Appellee Robert Teppe. EVANDER, J. Metropolitan Casualty Insurance Company timely appeals from an order that dismissed defendant Angel Lucas from a lawsuit filed by Metropolitan's insured, Robert Case No. 5D06-3713

Tepper.

We affirm the order of dismissal, but reverse the trial court's finding that

Metropolitan could bring a third-party action against Lucas. On May 13, 2004, Tepper was riding his bicycle when he was hit by a vehicle owned and operated by Lucas. He subsequently filed a two -count complaint against Lucas and Metropolitan. In Count I, Tepper asserted a negligence claim against Lucas. In Count II, Tepper sought to recover uninsured/underinsured (UM) benefits from Metropolitan.1 The complaint alleged that Tepper had suffered serious and permanent injuries as the result of Lucas' negligence. Lucas and Metropolitan each filed an answer and affirmative defenses. Lucas' insurance carrier tendered its policy limits of $25,000 to Tepper as full settlement of Tepper's claim against Lucas. Metropolitan did not grant Tepper

permission to accept the settlement offer. Instead, Metropolitan paid Tepper $25,000 and preserved its subrogation rights against Lucas. Metropolitan's letter to Tepper provided: Please be advised that at this time, we are substituting the funds of the tort feasor's insurance carrier, and hereby retain our subrogation rights. Please find our check enclosed for the amount of their coverage limits. Tepper accepted the funds tendered by Metropolitan. Lucas subsequently filed a

motion to dismiss the count of the complaint directed to Lucas. In her motion, Lucas argued that Tepper had "constructively or actually assigned his rights as against Lucas to Metropolitan and it is Metropolitan that has the right to sue Lucas and not [Tepper]." In his complaint, Tepper alleged that he had made a demand to Metropolitan for arbitration of the UM claim but Metropolitan had elected, pursuant to the terms of its policy, to be joined with the tortfeasor in the subject action.
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Over Metropolitan's objection, the trial court granted Lucas' motion to dismiss. In its order, the trial court stated that if Lucas was to be a part of the proceedings, "it would have to be based upon a third party action brought by Metropolitan." The trial court denied Metropolitan's subsequent motion for rehearing and this appeal ensued. Tepper has not participated in the appellate proceedings and apparently did not oppose Lucas' motion to dismiss. We begin our analysis by rejecting Lucas' argument that Metropolitan does not have standing to appeal the trial court's decision to dismiss Tepper's complaint against Lucas. Generally, a party has standing to challenge a trial court's order when it has a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation. Gieger v. Sun First Nat'l Bank of Orlando, 427 So. 2d 815, 817 (Fla. 5th DCA 1983). Here, the trial court's order implicitly addresses Metropolitan's subrogation rights against Lucas and expressly addresses its rights as a potential third-party plaintiff. Therefore, we find that Metropolitan has standing to appeal the trial court's order. Metropolitan makes three arguments on appeal. First, Metropolitan contends that the trial court erred in "looking beyond the four corners" of Tepper's complaint. As a general rule, a trial court may not consider matters outside the four corners of the complaint in deciding a motion to dismiss. Winter v. Miami Beach Healthcare Group, Ltd., 917 So. 2d 973 (Fla. 3d DCA 2005). However, we find Metropolitan has waived this argument. There is no indication that this issue was ever presented to the trial court. (It clearly was not raised in Metropolitan's four-page motion for rehearing.)

Furthermore, Metropolitan does not dispute the facts that were relevant to the resolution of Lucas' motion to dismiss. A trial court is not bound by the four corners of the

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complaint where the facts are undisputed and the motion to dismiss raises only a pure question of law. Ground Improvement Techniques, Inc. v. Merchants Bonding Co., 707 So. 2d 1138 (Fla. 5th DCA 1998). Second, Metropolitan argues that the trial court's order directly conflicts with the requirements set forth in section 627.727(6), Florida Statutes (2004). Section

627.727(6)(a) 2 provides that if an injured person is willing to accept a settlement offer from the alleged tortfeasor, but such settlement would not fully satisfy the personal injury claim so as to create a UM claim, the injured party must give written notice of the proposed settlement to his or her UM insurer. If the UM insurer authorizes settlement or fails to respond as required by subsection (6)(b), the injured party may proceed to execute a full release in favor of the alleged tortfeasor and the alleged tortfeasor's liability insurer without prejudice to any UM claim. Subsection (6)(b) provides the UM carrier with the means to preserve its subrogation rights against the alleged tortfeasor

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Section 627.727(6)(a), Florida Statutes (2004) provides: If an injured person or, in the case of death, the personal representative agrees to settle a claim with a liability insurer and its insured, and such settlement would not fully satisfy the claim for personal injuries or wrongful death so as to create an underinsured motorist claim, then written notice of the proposed settlement must be submitted by certified or registered mail to all underinsured motorist insurers that provide coverage. The underinsured motorist insurer then has a period of 30 days after receipt thereof to consider authorization of the settlement or retention of subrogation rights. If an underinsured motorist insurer authorizes settlement or fails to respond as required by paragraph (b) to the settlement request within the 30-day period, the injured party may proceed to execute a full release in favor of the underinsured motorist's liability insurer and its insured and finalize the proposed settlement without prejudice to any underinsured motorist claim. 4

even if it denies its insured permission to settle with the tortfeasor. To do so, the UM carrier must pay its insured the amount of money offered by the tortfeasor (or the torfeasor's liability insurer). If an underinsured motorist insurer chooses to preserve its subrogation rights by refusing permission to settle, the underinsured motorist insurer must, within 30 days after receipt of the notice of the proposed settlement, pay to the injured party the amount of the written offer from the underinsured motorist's liability insurer. Thereafter, upon final resolution of the underinsured motorist claim, the underinsured motorist insurer is entitled to seek subrogation against the underinsured motorist and the liability insurer for the amounts paid to the injured party.

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