Emmco Ins. Co. v. Bankston

Decision Date14 April 1964
Docket NumberNo. 63-260,63-260
Citation163 So.2d 24
PartiesEMMCO INSURANCE COMPANY, Appellant, v. Clarence BANKSTON, Appellee.
CourtFlorida District Court of Appeals

Reynolds & Larotonda, Miami, for appellant.

Sherouse & Corlett and William C. Merritt, Miami, for appellee.

Before BARKDULL, C. J., and HORTON and TILLMAN PEARSON, JJ.

HORTON, Judge.

This cause was submitted to the court without oral argument upon the record and the briefs of the respective parties.

The appellant had a policy of insurance, which included collision, on an automobile owned by one Battle. The appellee ran into Battle's automobile causing damage to the car and personal injuries. The damage to Battle's car was $250 of which the appellant paid $200 ($50 deductible). It is alleged, although not shown by the record, that appellant became 'subrogated to all the rights of * * * Battle under the policy.' Battle sued appellee for his personal injuries and those of his wife which suit was dismissed upon a joint stipulation of the parties. The dismissal and stipulation were based upon a written release which contained a reservation of right as to any property damage claim 'which may have been assigned' to appellant under its policy of insurance. Appellant then instituted this suit to recover against the tort feasor for the amounts paid Battle for his property damage. The appellee in his answer alleged there had been a splitting of the cause of action and therefore appellant was estopped to prosecute this cause. The trial judge granted summary judgment in favor of the appellee based upon an affidavit of the appellee's counsel to which was attached the pertinent portions of the record in the personal injury action. This appeal is from the summary judgment.

The appellant relies solely on the decision announced in Rosenthal v. Scott, Fla.1961, 150 So.2d 433, for reversal. The Rosenthal case involved an assignment or subrogation agreement as distinguished from a loan receipt involved in Mims v. Reid, Fla.1957, 98 So.2d 498.

We reverse upon the authority of Rosenthal v. Scott, supra. The appellant's complaint alleged '* * * the plaintiff became subrogated to all the rights of Jubbie Battle to recover the amount of the said loss so paid under the policy.' The appellee's answer alleged 'that plaintiff Emmco * * * as assignee of the rights of Jubbie Battle is estopped * * *' and again in the appellee's answer, 'Wherefore, plaintiff Emmco * * * as assignee of Jubbie Battle is...

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4 cases
  • Eagle-Picher Industries, Inc. v. Cox
    • United States
    • Florida District Court of Appeals
    • December 31, 1985
    ...suit brought subsequent to plaintiff's successful personal injury suit did not violate rule against splitting); Emmco Ins. Co. v. Bankston, 163 So.2d 24, 26 (Fla.3d DCA 1964) (where insured had sued defendant for personal injuries arising from car accident, rule against splitting did not pr......
  • Holyoke Mut. Ins. Co. in Salem v. Concrete Equipment, Inc.
    • United States
    • Florida District Court of Appeals
    • February 17, 1981
    ...Fire Insurance Co., 46 Fla. 283, 328, 35 So. 228, 244 (1903); Rebozo v. Royal Indemnity Company, supra; Emmco Insurance Company v. Bankston, 163 So.2d 24 (Fla. 3d DCA 1964). Accord, State Farm Mutual Automobile Insurance Company v. Robbins, 237 So.2d 208 (Fla. 4th DCA 1970); Morgan v. Gener......
  • Amador v. Hernandez, 89-768
    • United States
    • Florida District Court of Appeals
    • September 12, 1989
    ...whose action adversely binds him or favorably inures to his benefit and our present holding that it is not. See Emmco Ins. Co. v. Bankston, 163 So.2d 24 (Fla. 3d DCA 1964). ...
  • Henry v. State
    • United States
    • Florida District Court of Appeals
    • April 16, 1964

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