Bussey v. Shingleton

• Decision Date: 06 June 1968
• Docket Number: No. J--14,J--14
• Citation: Bussey v. Shingleton, 211 So.2d 593 (Fla. App. 1968)
• Parties: Elizabeth Reiff BUSSEY, Appellant, v. Frances Ruth Bennett SHINGLETON and Nationwide Mutual Insurance Company, an Ohio corporation Appellees.
• Court: Florida District Court of Appeals

Page 593

211 So.2d 593

Elizabeth Reiff BUSSEY, Appellant, v. Frances Ruth Bennett SHINGLETON and Nationwide Mutual Insurance Company, an Ohio corporation Appellees.

No. J--14.

District Court of Appeal of Florida, First District.

June 6, 1968.

Rehearing Denied July 9, 1968.

Leo L. Foster and Seymour H. Rowland, Jr., of Parker, Foster & Madigan, Tallahassee, for appellant.

Helen C. Ellis of Keen, O'Kelley & Spitz, Tallahassee, for appellees.

JOHNSON, Judge.

This is an appeal from a final order of the Circuit Court of Leon County, striking all those portions of the complaint joining Nationwide Mutual Insurance Company as a party defendant to this cause and dismissing said Nationwide as a party to the cause.

There was an automobile accident wherein the appellant, who was plaintiff below, alleged in her complaint, that she was stopped in her lane of traffic behind a long line of traffic when the appellee Shingleton, one of the defendants below, ran into the back of appellant's automobile, doing property damage and physical damage to the plaintiff. The merits and demerits of this phase of the complaint is not before us at this time, as the case had not been tried when this appeal was taken.

In the complaint, the appellant further alleged that at the time of the accident, Nationwide Mutual Insurance Company, named as a codefendant with Shingleton, the insured, 'had in full force and effect a policy of liability insurance written to cover said automobile of the defendant, Frances Ruth Bennett Shingleton, the owner and operator thereof, for injuries and property damages received in a single accident.' This was not an indemnity policy, but a liability policy and so stipulated by the parties.

The complaint further alleged in substance that said insurance policy insured the defendant Shingleton against liability because of bodily injuries and property damages sustained and due to the operation of said automobile; that said policy was written in favor of third persons who might suffer damages by virtue of the operation of said automobile, and that by virtue thereof, at the moment the accident occurred, the insurance policy inured to the benefit of the plaintiff (appellant).

The trial court granted the motion of the defendant (appellee) Shingleton to strike those portions of the complaint which had the effect of making the appellee Nationwide Mutual Insurance Company a party defendant, and of its own motion dismissed Nationwide from the cause.

In granting said motion and entering its order dismissing Nationwide as a party defendant, the court pointed out that it was 'rejecting the plaintiff's contention that F.R.C.P. Rule 1.210(a) Florida Rules of Court, 1967 (30 F.S.A.), permits joinder of the defendant's insurance carrier as a party in a negligence case arising out of an automobile accident.'

It is from this order, this appeal is taken.

Plainly stated, the question before this court is whether or not F.R.C.P. Rule 1.210(a), permits the joinder of an insurer under a liability insurance policy, as a party defendant, along with the insured, in an action for damages from alleged negligent operation of the insured automobile by the insured owner?

The trial court answered this question in the negative.

We feel that this question poses one of great importance still, although it has heretofore been treated by this court, by one or more of our sister District Courts of Appeal and by our Supreme Court.

From the previous cases from the above courts, it would appear that the trial court was correct in its order dismissing the insurance company as a defendant; but we feel that a new look should be taken into this question because of events happening subsequent to the decisions mentioned above, and subsequent legislative enactments and apparent changes in public policy.

We now have in the Supreme Court's files, briefs of insurance companies in Florida Supreme Court Case #35,524, wherein the insurance companies admit they are the real party in interest in cases involving their respective insureds. This admission we have not had before when the courts considered this question as outlined below. Whether the defendant, Nationwide Mutual Insurance Company, is such a real party in interest in the case sub judice or not, appears to us to be a question of fact to be determined from evidence submitted to a jury, and if it appears that said defendant is a real party in interest, then said defendant is properly made a defendant within the terms of F.R.C.P. Rule 1.210(a), and if not a real party in interest then said defendant's attorneys would be engaged in unauthorized practice of law as prohibited by the Canons of Legal Ethics.

Closely allied in this question is the question of the unauthorized practice of law as defined in the Canons of Ethics of the Florida Bar, and with particular references to 'house counsel' of insurance companies and 'salaried counsel' of insurance companies defending damage suits for insured patrons of the insurance companies.

We are immediately confronted with the earlier decisions in which it has been held that the plaintiff could not combine in one action a cause sounding in tort against one defendant with a cause sounding in contract against another defendant. ¹

We are also confronted with the holding that there is no privity between the insurance carrier and the third party damaged by an insured, ² but consider the admissions referred to supra in Supreme Court Case #35,524.

The theory has been advanced also, that to allow the inclusion of the insurance company as a defendant, or to even let it be known to the jury that the party defendant is insured, renders the same prejudicial to the rights of the defendant. (If the insurance company is obligated to pay any damage assessed against the insured, how, then is the insured hurt by such prejudice if in fact such does exist?)

This prejudice theory has been somewhat dispelled, however, by the results shown in Wisconsin, where by statute a direct action is allowed against the insurance company, by the fact that the jury verdicts tended to be lower where the insurance company was made a party.

Let's pause here and real Rule 1.210(a), F.R.C.P., as follows:

'(a) Parties Generally. Every action may be prosecuted in the name of the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another of a party expressly authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if his presence is necessary or proper to a complete determination of the cause. Persons having a united interest may be joined on the same side as plaintiffs or defendant, and when any one refuses to join, he may for such reason be made a defendant.'

We see in said rule the provision that 'any person may be made a defendant who has or claims an interest adverse to the plaintiff.'

In 1966, the Florida Bar petitioned the Supreme Court for an additional rule to the rules governing conduct of attorneys, being designated in said court as Case No. 35,524, referred to supra. This proposed rule would have precluded a lawyer who...