495 So.2d 204 (Fla.App. 5 Dist. 1986), 85-1065, West American Ins. Co. v. Yellow Cab Co. of Orlando, Inc.

CourtFlorida Court of Appeals. Fifth District
Writing for the CourtAuthor: Orfinger
Citation11 Fla. L. Weekly 1879,495 So.2d 204
PartiesWEST AMERICAN INSURANCE COMPANY, Appellant, v. YELLOW CAB COMPANY OF ORLANDO, INC., Appellee.
Docket Number85-1065.
Date28 August 1986

Page 204

495 So.2d 204 (Fla.App. 5 Dist. 1986)

11 Fla. L. Weekly 1879

WEST AMERICAN INSURANCE COMPANY, Appellant,

v.

YELLOW CAB COMPANY OF ORLANDO, INC., Appellee.

No. 85-1065.

Florida Court of Appeals, Fifth District.

August 28, 1986

Rehearing Denied Sept. 30, 1986.

Page 205

J. Charles Ingram of Pitts, Eubanks, Hannah, Hilyard & Marsee, P.A., Orlando, for appellant.

William L. Mims, Jr. of Sanders, McEwan, Mims & Martinez, Orlando, for appellee.

ORFINGER, Judge.

West American Insurance Company appeals a judgment NOV entered in a contribution action. For the reasons discussed, we reverse.

In 1981 a collision occurred between a taxi owned by Yellow Cab Company of Orlando, Inc., (Yellow Cab) and an automobile operated by an insured of West American Insurance Company (West American), resulting in injury to a passenger in the vehicle insured by West American. The injured passenger brought an action against both West American and Yellow Cab. Yellow Cab refused to negotiate, but the injured passenger negotiated a settlement with West American in the amount of $30,000, and executed a release of all claims as to both West American and Yellow Cab.

West American then brought a contribution action against Yellow Cab, alleging (1) that the settlement amount was reasonable, (2) that the injured passenger had released all claims against both defendants, and (3) that West American had paid more than its insured's pro rata share of any potential common liability. A jury trial was held, and the jury returned a verdict finding that West American's settlement with the injured passenger was reasonable and that Yellow Cab was 100% responsible for the subject accident. In accordance with the jury's verdict, final judgment was entered for West American for the full amount of the settlement, but the trial court later set it aside and entered judgment for Yellow Cab notwithstanding the jury's verdict, holding that because the jury had found that Yellow Cab was 100% responsible for the accident, the parties were not joint tortfeasors as contemplated by the contribution statute.

Page 206

At common law, the right of contribution did not exist among joint tortfeasors. This common law restriction was abolished in Florida with the adoption of the Uniform Contribution Among Tortfeasor's Act. Section 768.31, Florida Statutes (1985) states in pertinent part as follows:

Except as otherwise provided in this act, when two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.

§ 768.31(2)(a), Fla.Stat. (1985). The statute provides that the right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. § 768.31(2)(b), Fla.Stat. (1985). The statute further provides that a tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement, or in respect to any amount paid in a settlement which is in excess of what was reasonable. See § 768.31(2)(d), Fla.Stat. (1985).

A problem arises in this case because the fact-finder in the contribution action determined that the plaintiff seeking contribution was not a tortfeasor. Other courts which have considered similar statutes have held that to recover on the basis of contribution, there must be a common liability to a third person at the time of the accident between the one seeking contribution and the one from whom contribution is sought, created by their concurrent negligence. Thus, the party seeking contribution must plead and prove, among other necessary allegations, his own negligence and the negligence of the other tortfeasor. See ...

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2 practice notes
  • Allocating Responsibility for Defense and Indemnity Costs Among Multiple Insurers
    • United States
    • JD Supra United States
    • May 1, 2018
    ...name="_ftn24">[24] S.-Owners Ins. Co., 248 F. Supp. 3d at 1286. [25] W. Am. Ins. Co. v. Yellow Cab Co. of Orlando, 495 So.2d 204, 207 (Fla. 5th DCA 1986) (quotingBoley v. Daniel, 72 Fla. 121, 72 So. 644, 645 [26] Monte de Oca v. State Farm Fire & Cas. Co., 897 So.2d 471, 472 n.2 (Fla. 3d DC......
  • Assignment v. Subrogation — Prosecuting Recovery Actions Arising from Personal Injury Claims
    • United States
    • JD Supra United States
    • August 22, 2016
    ...or legal judgment against it or the Wiks that formally required the payment. See West Am. Ins. Co. v. Yellow Cab Co. of Orlando, Inc., 495 So. 2d 204, 207 (Fla. 5th DCA Throughout its opinion, the Lifetime Brands court noted that equitable subrogation is a creature of equity and that its ap......
2 firm's commentaries
  • Allocating Responsibility for Defense and Indemnity Costs Among Multiple Insurers
    • United States
    • JD Supra United States
    • May 1, 2018
    ...name="_ftn24">[24] S.-Owners Ins. Co., 248 F. Supp. 3d at 1286. [25] W. Am. Ins. Co. v. Yellow Cab Co. of Orlando, 495 So.2d 204, 207 (Fla. 5th DCA 1986) (quotingBoley v. Daniel, 72 Fla. 121, 72 So. 644, 645 [26] Monte de Oca v. State Farm Fire & Cas. Co., 897 So.2d 471, 472 n.2 (Fla. 3d DC......
  • Assignment v. Subrogation — Prosecuting Recovery Actions Arising from Personal Injury Claims
    • United States
    • JD Supra United States
    • August 22, 2016
    ...or legal judgment against it or the Wiks that formally required the payment. See West Am. Ins. Co. v. Yellow Cab Co. of Orlando, Inc., 495 So. 2d 204, 207 (Fla. 5th DCA Throughout its opinion, the Lifetime Brands court noted that equitable subrogation is a creature of equity and that its ap......

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