Aaron v. Allstate Ins. Co., s. 88-1962
| Decision Date | 28 March 1990 |
| Docket Number | 88-1978 and 88-1979,Nos. 88-1962,s. 88-1962 |
| Citation | 559 So.2d 275 |
| Parties | 15 Fla. L. Weekly D802 Ruth AARON and Scott C. Mickler, Appellants/Cross Appellees, v. ALLSTATE INSURANCE COMPANY, Appellee/Cross Appellant. |
| Court | Florida District Court of Appeals |
Ronald Fitzgerald of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellant/cross appellee-Ruth Aaron.
James J. Kenny and Thomas D. Hall of Kenny, Nachwalter & Seymour, P.A., Miami, Kirk R. Ruthenberg of Sonnenschein Carlin Nath & Rosenthal, Washington, D.C., and Duane C. Quaini and Steven M. Levy of Sonnenschein Carlin Nath & Rosenthal, Chicago, Ill., for appellee/cross appellant.
Gil Haddad and Gary Gerrard of Haddad, Josephs and Jack, Coral Gables and John R. Beranek of Aurell, Radey, Kinkle & Thomas, Tallahassee, for Scott C. Mickler.
This is an appeal from the dismissal of a third amended complaint with prejudice and a cross appeal of certain discovery orders.
This appeal arises out of a personal injuries action. Ruth Aaron, the driver of a vehicle insured by Allstate, drove across the center line on the highway and struck, head-on, the Ford Bronco in which Scott Mickler was a passenger. Mickler was propelled from the back seat into the front seat of the Bronco and struck his head. As a result Mickler became a quadriplegic. Mickler sued Aaron and her insurance company, Allstate. He also sued Ford for negligent design of the Bronco. Subsequently Ford settled with Mickler at trial for $3,500,000. Allstate, apparently expecting Ford to be lead counsel at trial, was allegedly unprepared when Ford settled with Mickler. Mickler's suit against Allstate proceeded to trial and a verdict was returned in favor of Mickler in the amount of $16,500,000. In the final judgment the trial court set off Ford's settlement and the $17,500 Allstate policy limit and entered a judgment against Aaron for $12,982,500. Although the attorneys for Allstate advised the insurance company to appeal certain issues concerning whether or not a "seat belt defense" was available to Allstate, the insurance company declined to follow this legal advice. Allstate could have appealed the availability of the seatbelt defense in this case as it did, successfully, in Lafferty v. Allstate Insurance Company, 425 So.2d 1147 (Fla. 4th DCA 1983), reversed 451 So.2d 446 (1984).
Subsequently Mickler initiated an action against Allstate alleging that Aaron had assigned to Mickler her rights to a claim against Allstate for an improper or inadequate defense. The complaint alleged bad faith, negligence, breach of contract or fraud against Allstate in causing the entry of an excess judgment against Aaron. Allstate filed a motion to dismiss the complaint and argued, among other things, that Mickler could not bring the action because Aaron's cause of action was for legal malpractice and was not assignable. Allstate also argued that there was not a valid assignment because Mickler had not given Aaron a release in return for the assignment. The trial court dismissed the complaint. Mickler and Aaron appeal and Allstate cross appeals regarding a discovery question.
It is axiomatic that in reviewing an order dismissing a complaint for failure to state a cause of action the appellate court's scope of review is relatively narrow. The court merely looks to the four corners of the complaint to determine whether it states a cause of action. The court takes all well pleaded allegations therein as true. Sovran Bank, N.A. v. Parsons, 547 So.2d 1044 (Fla. 4th DCA 19...
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