American Home Assur. Co. v. City of Opa Locka

Citation368 So.2d 416
Decision Date06 March 1979
Docket NumberNos. 77-2648,78-84,s. 77-2648
PartiesAMERICAN HOME ASSURANCE COMPANY, a Foreign Corporation, Appellant, v. CITY OF OPA LOCKA, Florida, a Political Subdivision of the State of Florida and the Travelers Insurance Company, a Foreign Corporation, Appellees.
CourtCourt of Appeal of Florida (US)

Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Miami, for appellant.

High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for appellees.

Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

SCHWARTZ, Judge.

American Home Assurance Company, the defendant below, appeals from a judgment against it in an indemnification action brought by the plaintiffs-appellees, Travelers Insurance Company and the City of Opa Locka. We affirm the judgment except for the attorney's fees awarded below to the plaintiffs for their prosecution of the present proceeding.

An Opa Locka police officer, Kenneth LeMuer, the City of Opa Locka itself, and the Travelers Insurance Company were named as party defendants in a wrongful death action arising out of an incident in which the officer shot and killed a man named Daniel Little. The city was insured by a general liability policy issued by Travelers; the policy did not insure the individual officer. LeMuer Was, however, specifically afforded coverage as an additional insured in an American Home Insurance Company "police professional coverage" policy as to which Opa Locka was the named insured. Notwithstanding the fact that its policy did not cover the officer, Travelers filed an answer on his behalf as well as for its insured, Opa Locka, and, of course, itself. Through its counsel, it continued to represent all three parties throughout the entire progress of the wrongful death case. Travelers defended LeMuer, however, only under a specific reservation agreement which preserved its right to deny coverage a right which clearly existed since there was no question that Travelers did not insure the officer and owed him no duties either of defense or of payment.

In the meantime, American Home, which had investigated the incident immediately after it occurred and was at all times informed as to the progress of the wrongful death case, did nothing whatsoever with respect to its self-acknowledged duty to defend its insureds, LeMuer and Opa Locka. Although Travelers, at several stages, informed American Home's counsel that it regarded American Home as the insurer primarily liable and although it first invited and then demanded that American Home at least participate in the defense, American Home declined to appear directly in the case in any way. It did so apparently on the grounds that it had never been formally tendered suit papers and that Travelers' counsel was doing an effective job anyway. A fair reading of the correspondence which flew between counsel and the companies leads one to the conclusion that American Home made a conscious decision "not to get involved," to take its chances, and to hope for the best.

At the conclusion of the jury trial in the Little case, the plaintiff recovered a general jury verdict and judgment against all three defendants for $13,600.00. 1 After Travelers had, without success, called upon American Home to satisfy the judgment, it did so itself, presumably on behalf of its insured Opa Locka. Travelers, joined by Opa Locka as an essentially formal party plaintiff, then brought the case now before us against American Home. In this action Travelers sought reimbursement of the entire amount of the plaintiff's judgment, plus all the expenses, including attorney's fees of $6,998.00 and costs in the amount of $1,965.72, it had paid in defending the wrongful death case on behalf of the three named defendants. After a non-jury trial, the lower court entered judgment for the plaintiffs and against American Home for the entire amount claimed, $22,563.72. An additional award of $3,375.00 was later granted to the plaintiffs for their attorney's fees in the successful prosecution of the action against American Home. We find no merit in any of the arguments made by American Home for reversal of the primary judgment, but agree with its claim that the award of attorney's fees in this action was incorrect.

On the facts presented in the wrongful death case, it is apparent that that action and the resulting judgment for the plaintiff were based on the negligence or intentional tort of LeMuer, as the active tortfeasor, and that Opa Locka was merely vicariously liable as his employer. Since this is true, it is clear that Opa Locka had a right to indemnification, implied by operation of law, for the wrongful death judgment and expenses from LeMuer, and therefore from his carrier, American Home. Stuart v. Hertz Corp., 351 So.2d 703, 705 (Fla.1977); Fincher Motor Sales, Inc. v. Lakin, 156 So.2d 672 (Fla. 3d DCA 1963); Hutchins v. Frank E. Campbell, Inc., 123 So.2d 273 (Fla. 2d DCA 1960). Travelers, as an insurer of Opa Locka which actually expended the sums involved and thus as the city's subrogee, was likewise entitled to recovery. A. United Auto Rental, Inc. v. Bradley, 352 So.2d 579 (Fla. 3d DCA 1977); Grange Ins. Ass'n. v. Great American Ins. Co., 89 Wash.2d 710, 575 P.2d 235, 239-240 (1978); cf. Atlantic National Ins. Co. v. Erie Ins. Exchange, 211 F.Supp. 878 (S.D.Fla.1962); Annot. 31 A.L.R.2d 1324 (1953).

American Home argues that the indemnity claim does not lie because the plaintiff's original complaint Alleged that Opa Locka was guilty of Active misconduct, among other things, in negligently hiring LeMuer. 2 However, as the court held in Insurance Co. of North America v. King, 340 So.2d 1175, 1176 (Fla. 4th DCA 1976):

"We conclude that it is an indemnitee's actual wrongdoing or lack of it, rather than allegations of wrongdoing, which determine the indemnitee's rights. A plaintiff should not be able to arbitrarily deprive a defendant of his right to indemnification from a third party by alleging that he was actively negligent when in fact that defendant is found not to have been actively negligent."

On this record, we cannot interfere with the trial court's implied finding that the judgment against Opa Locka was based only upon its passive, vicarious responsibility for LeMuer's actions, notwithstanding what was alleged in the plaintiff's complaint. See MacArthur v. Gaines, 286 So.2d 608 (Fla. 3d DCA 1973). The King case therefore requires rejection of the appellant's contention on this issue.

American Home separately contends that it should not be required to reimburse Travelers for that portion of the fees and expenses which was attributable to the defense of Opa Locka. It argues that Travelers was obliged to expend those funds in any case by virtue of the obligation to defend contained in its own insurance policy with the city. 3 Again, we do not agree. Since, as we have seen, the suit which Opa Locka and Travelers were obliged to defend was found to have resulted only from LeMuer's active wrongdoing, there can be no doubt that he, and his insurer American Home, are liable for the expenses necessarily expended in that defense. Insurance Co. of North America v. King, supra; Canadian Universal Ins. Co. v. Employers Surplus Lines Ins. Co., 325 So.2d 29 (Fla. 3d DCA 1976), cert. denied,336 So.2d 1180 (Fla.1976); Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla. 2d DCA 1969), cert. denied, 234 So.2d 122 (Fla.1969); Morse Auto Rentals, Inc. v. Dunes Enterprises, Inc., 198 So.2d 652 (Fla. 3d DCA 1967). Expenses incurred by a secondarily liable carrier in the defense of its insured, have been universally awarded when that company sues a primary insurer of the same insured, which Should have undertaken that defense. E. g., National Farmers Union Property & Casualty Co. v. Farmers Ins. Group, 14 Utah 2d 89, 377 P.2d 786 (1963); Standard Surety & Casualty Co. of New York v. Metropolitan Casualty Co. of New York, 67 N.E.2d 634 (Ohio App.1945). These cases apply with even greater force to this situation, in which only American Home, and not Travelers as well, insured the common law indemnitor, LeMuer. 4

Nothing daunted, American Home then argues that at least it should not repay Travelers for the costs of defending LeMuer 5 whom Travelers did not insure and whom it therefore had no duty to defend. Once more, the appellant's arrow falls far short of the mark. It is admitted that by providing the officer with a defense, Travelers was performing an obligation which was properly owed LeMuer only by American Home. See, e. g., Stevens v. Horne, 325 So.2d 459 (Fla. 4th DCA 1975); 18A, Fla.Jur., Insurance, § 812, pp. 64-67, and cases cited. The record shows that American Home deliberately declined to undertake the discharge of its duty to defend after being given ample notice and opportunity to do so, and that...

To continue reading

Request your trial
32 cases
  • Perkins State Bank v. Connolly
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 19, 1980
    ...those fees expended in litigation to enforce its indemnity rights against Perkins. E. g., American Home Assurance Co. v. City of Opa Locka, 368 So.2d 416 (Fla.Dist.Ct.App.-3rd Dist. 1979). Since both actions were asserted in the same lawsuit, it may be difficult to determine the precise por......
  • General Acc. Fire & Life Assur. Corp., Ltd. v. American Cas. Co. of Reading, Pa.
    • United States
    • Court of Appeal of Florida (US)
    • November 18, 1980
    ...by assignment from the insured and approved in Roberts v. Carter, supra. General Accident cites American Home Assurance Co. v. City of Opa Locka, 368 So.2d 416 (Fla.3d DCA 1979), as a reminder that attorneys' fees are not recoverable for indemnity and subrogated rights. In the case before t......
  • Certain Underwriters at Lloyds v. Waveblast Watersports, Inc.
    • United States
    • U.S. District Court — Southern District of Florida
    • January 14, 2015
    ...[89] at 8 (citing Continental Cas. Co. v. City of S. Daytona, Fla., 807 So.2d 91 (Fla. 5th DCA 2002) ; Am. Home Assurance Co. v. City of Opa Locka, 368 So.2d 416 (Fla. 3d DCA 1979) ; Crabtree v. Hertz Corp., 461 So.2d 981 (Fla. 1st DCA 1984) ). Plaintiff argues that the lease's indemnificat......
  • U.S. Fidelity and Guaranty Co. v. State Farm Mut. Auto. Ins. Co.
    • United States
    • Court of Appeal of Florida (US)
    • April 3, 1979
    ...beneficiaries, and third parties who claim policy coverage by assignment from the insured." (e. s.) Cf. American Home Assurance Co. v. City of Opa Locka, 368 So.2d 416 (Fla. 3d DCA 1979). U.S.F. & G. argues that Mrs. Arevalo does not qualify under this statement. Although it admits that she......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT