West American Ins. Co. v. Yellow Cab Co. of Orlando, Inc.
| Citation | 495 So.2d 204,11 Fla. L. Weekly 1879 |
| Decision Date | 28 August 1986 |
| Docket Number | No. 85-1065,85-1065 |
| Parties | 11 Fla. L. Weekly 1879 WEST AMERICAN INSURANCE COMPANY, Appellant, v. YELLOW CAB COMPANY OF ORLANDO, INC., Appellee. |
| Court | Court of Appeal of Florida (US) |
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.
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.
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 Farmer's Mutual Automobile Ins. Co. v. Milwaukee Automobile Ins. Co., 8 Wis.2d 512, 99 N.W.2d 746 (1959); Alamida v. Wilson, 53 Hawaii 398, 495 P.2d 585 (1972). Section 768.31, Florida Statutes clearly requires that there be a common liability. Because West American was unable to prove common liability, the trial court was correct in holding that contribution would not lie.
To deny recovery, however, because West American was unable to prove its own liability produces a most unfair and inequitable result when it is apparent that West American is entitled to recovery under principles of subrogation. Both the Wisconsin court and the Hawaii court in the previously cited cases recognized that recovery could be had by way of subrogation, although not by contribution when common liability was lacking. Subrogation provides an equitable remedy for restitution to one who in the performance of some duty has discharged a legal obligation which should have been met, either wholly or partially, by another. See Underwriters at Lloyds v. City of Lauderdale, 382 So.2d 702 (Fla.1980); Jones v. Williams Steel Industries, Inc., 460 So.2d 1004 (Fla. 5th DCA), rev. denied, 467 So.2d 1000 (Fla.1984); Allstate Life Ins. Co. v. Weldon, 213 So.2d 15 (Fla. 3d DCA 1968). Florida recognizes two types of subrogation, conventional and legal. See Dixie Nat. Bank v. Employer's Commercial Union Inc. Co., 463 So.2d 1147 (Fla.1985). In the early case of Boley v. Daniel, 72 Fla. 121, 72 So. 644, 645 (1916), the supreme court offered the following bench-mark definition:
Subrogation is the substitution of one person in the place of another with reference to a lawful claim or right. Subrogation arises by operation of law, where one having a liability or a right or a fiduciary relation in the premises pays a debt due by another under such circumstances that he is, in equity, entitled to the...
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