Allstate Ins. Co. v. Glassman

• Decision Date: 24 March 1999
• Docket Number: No. 98-285, No. 98-13.
• Citation: 729 So.2d 485
• Parties: ALLSTATE INSURANCE COMPANY, Appellant, v. Dr. Paul GLASSMAN and Interamerican Car Rental, Inc. Appellees.
• Court: Florida District Court of Appeals

729 So.2d 485

ALLSTATE INSURANCE COMPANY, Appellant, v. Dr. Paul GLASSMAN and Interamerican Car Rental, Inc. Appellees.

Nos. 98-285, 98-13.

District Court of Appeal of Florida, Third District.

March 24, 1999.

Richard A. Sherman and Rosemary B. Wilder, Fort Lauderdale, for appellant.

Cooney, Mattson, Lance, Blackburn, Richards & O'Connor and Warren Kwavnick, Fort Lauderdale, for appellees.

Before COPE, GREEN and SORONDO, JJ.

PER CURIAM.

Allstate Insurance Company (Allstate) appeals the lower court's Final Judgment entered in its favor against Dr. Paul Glassman (Glassman) and Interamerican Car Rental, Inc. (Interamerican). We affirm.

Plaintiff Astrid Torres was riding as a passenger in her boyfriend, Glassman's, rental car when they were involved in an intersection collision. Glassman, who had $25,000 in insurance coverage, had rented the car from Interamerican. Interamerican was self-insured for $200,000. Torres wanted to testify in favor of Glassman that he had the green light, so she did not sue him for negligence. Instead, she sued Allstate, her uninsured motorist (UM) carrier, as it stood in the shoes of the other tort-feasor driver involved in the accident, Danilo DeJesus, claiming that DeJesus was 100% liable for her damages.

Allstate answered the complaint, admitting that Torres was insured under an Allstate policy and demanded strict proof of Torres' claim against it. Among its affirmative defenses, Allstate alleged that Torres' recovery under "the alleged under-insured motorist policy" was subject to the terms, conditions, and limitations of the policy.

Allstate included with its Answer a third-party complaint against Glassman and Interamerican seeking contribution, based on Glassman's negligence and Interamerican's vicarious liability, asserting that as joint tortfeasors they were liable for contribution to Allstate for any injuries sustained by Torres.

The case went to trial. The jury verdict listed DeJesus and Glassman as the defendants for purposes of assessing their comparative fault. Glassman and DeJesus were each found 50% liable for the intersection collision. The jury found that Torres was not permanently injured and awarded her $40,936 in economic damages. The total award was reduced by Allstate's $10,000 PIP coverage to $30,936. Since the jury found Glassman liable, Torres then moved for entry of judgment for the entire verdict against both Allstate and/or Glassman and Interamerican. Allstate moved for entry of final judgment in its favor, arguing that Torres' damages had not exceeded the available insurance coverage and only economic damages were awarded, making all the parties jointly and severally liable. Allstate also moved for entry of final judgment against Glassman and Interamerican.

After an unsuccessful attempt at mediation and after the parties submitted memoranda of law to the trial court, the court entered Final Judgment against Allstate for the full amount of the verdict for Torres, $30,936. The trial court then entered a Final Judgment in Allstate's favor, against Glassman and Interamerican, for 50% of the verdict ($15,486), finding that Allstate had elected its remedy against Glassman and Interamerican by filing suit for contribution and was thus barred from full reimbursement of Torres' verdict.

Allstate appealed both Final Judgments but then settled with Torres and paid off her judgment. This appeal concerns the third-party contribution action between Allstate, Glassman, and Interamerican and Allstate's right to a Final Judgment in its favor for the full amount of the verdict for Torres.

Allstate raises several points on appeal. Although we affirm the trial court's verdict, finding that Allstate is not entitled to recover from Glassman and Interamerican the full payment it made to Torres, we believe Allstate's argument regarding equitable subrogation merits discussion.

Allstate argues in its Reply Brief that under the doctrine of equitable subrogation, it should be allowed to recover from Glassman and Interamerican 100% of the payment it made to Torres. Allstate contends that because the jury found DeJesus 50% liable and Glassman 50% liable, both DeJesus and Glassman are joint tortfeasors and are each jointly and severally liable. Furthermore, Interamerican is vicariously liable for Glassman's negligent acts. Therefore, Glassman and Interamerican are jointly and severally liable for the entire amount of Torres' damages, not just 50%. Thus, Allstate should be able to bring a subrogation action against Glassman and Interamerican to recover the entire $30,936 it paid to Torres. However, in its third-party complaint, Allstate pled a claim for contribution, not subrogation.

In our view, Allstate's failure to plead a third-party claim for subrogation rather than contribution is fatal to its position. In the Florida Supreme Court's recent case of Dade County School Board v. Radio Station WQBA, 24 Fla. L. Weekly S71, ___ So.2d ___, 1999 WL 52015 (Fla. Feb. 4, 1999), the Court reiterated the long-standing rule that, "Generally, if a claim is not raised in the trial court, it will not be considered on...