American Mut. Ins. Co. v. Bender

• Decision Date: 26 June 1987
• Docket Number: No. BP-326,BP-326
• Citation: 12 Fla. L. Weekly 1566,513 So.2d 669
• Parties: 12 Fla. L. Weekly 1566 AMERICAN MUTUAL INSURANCE COMPANY, Petitioner, v. John E. BENDER and Jane Bender, his wife, et al., Respondents.
• Court: Florida District Court of Appeals

Page 669

513 So.2d 669

12 Fla. L. Weekly 1566

AMERICAN MUTUAL INSURANCE COMPANY, Petitioner, v. John E. BENDER and Jane Bender, his wife, et al., Respondents.

No. BP-326.

District Court of Appeal of Florida First District.

June 26, 1987.

Karen K. Cole of Boyd, Jenerette, Staas, Joos, Williams, Felton & Wirtz, P.A., Jacksonville, for petitioner.

Wayne Hogan, Jacksonville, for respondents.

PER CURIAM.

This cause is before us on petition for writ of common law certiorari to review the order of the trial court denying petitioner's motion to dismiss. We found that the petition demonstrated a preliminary basis for relief and issued an order to show cause. See Rule 9.100(f), Florida Rules of Appellate Procedure; Kauffman v. King, 89 So.2d 24, 26 (Fla.1956). See also Canadian Home Insurance Company v. Norris, 471 So.2d 217 (Fla. 4th DCA 1985).

Respondent John Bender, a coppersmith by trade, was exposed to asbestos while in the United States Navy and filed suit in the nature of a products liability action against Keasbey & Mattison, Inc., its insurer (petitioner), as well as 14 other companies dealing with asbestos or asbestos-containing products and their insurers for compensatory and punitive damages. ¹

Petitioner American Mutual, insurer of Keasbey & Mattison, moved to dismiss the action against it on the ground that Keasbey & Mattison was not served, and Florida law does not recognize direct actions against insurance companies. ² The motion was denied, as was petitioner's motion for rehearing. Petitioner now seeks our review by common law certiorari.

On a motion to dismiss, the trial court is limited to the allegations of the complaint, and must construe those allegations in favor of the nonmoving party. The complaint alleges the following, in pertinent part:

14. Defendant, Nicolet, Inc., merged with its asbestos insulation producing predecessor, Keasbey & Mattison, Inc., and succeeded to its liabilities, or so succeeded either by de facto merger, by express or implied assumption, or by being a mere continuation of its predecessor.

According to the complaint, Keasbey & Mattison merged with Nicolet, Inc., a named and served defendant, who assumed the liabilities of its predecessor.

Where a plaintiff is required to prove an insured's negligence in order to recover damages from the insurer, the insured is an indispensable party, and no action may proceed against the insurer without the insured or its properly substituted party. Kephart v. Pickens, 271 So.2d 163 (Fla. 4th DCA 1972), cert. denied, 276 So.2d 168 (Fla.1973); and Roberts v. Nationwide Mutual Fire Insurance Company, 355 So.2d 219 (Fla. 1st DCA 1978). Count I of respondents' complaint alleges negligence on the part of the insured (Keasbey &...