Cleary Bros. Const. v. Upper Keys Marine Const., Inc.
| Decision Date | 12 April 1988 |
| Docket Number | No. 87-446,87-446 |
| Citation | 526 So.2d 116,13 Fla. L. Weekly 933 |
| Parties | 13 Fla. L. Weekly 933 CLEARY BROTHERS CONSTRUCTION CO., Appellant, v. UPPER KEYS MARINE CONSTRUCTION, INC., Appellee. |
| Court | Florida District Court of Appeals |
Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley and William M. Douberley, Miami, for appellant.
Walton, Lantaff, Schroeder & Carson and Holly C. Kelly, Miami, for appellee.
Before BARKDULL, HENDRY and FERGUSON, JJ.
In accordance with our earlier opinions in this matter, where the insolvency of the indemnitor's insurer was not found to bar indemnitee's claim under a contract between the parties providing for indemnification, Alonzo Cothron, Inc. v. Upper Keys Marine Construction, Inc., 480 So.2d 136 (Fla. 3d DCA 1985) and Upper Keys Marine Construction, Inc. v. Alonzo Cothron, Inc., 507 So.2d 1135 (Fla. 3d DCA 1987), we reverse the trial court's order granting summary judgment and entering final judgment in favor of Upper Keys Marine Construction, Inc.
Mistakenly treating appellant's indemnity claims as subroation claims, the court granted summary judgment in favor of Upper Keys, basing its conclusions upon section 631.54(3), Florida Statutes (1979), which prohibits subrogation actions by one insurer against the insured of another insolvent insurer. Although similar in nature, in that the parties involved are seeking reimbursement for monies paid which should have been paid by another, subrogation and indemnity are distinctly different concepts.
In Allstate Insurance Co. v. Metropolitan Dade County, 436 So.2d 976 (Fla. 3d DCA 1983), this court distinguished subrogation from indemnity where the question was whether an insurer's claim was barred by the statute of limitations. The insurer characterized the action as a "subrogated claim for indemnity," necessitating this court's clarification of the "true distinction" between these concepts:
In principle, there is a clear distinction between subrogation rights and indemnification rights. Subrogation is designed to afford relief when one is required to pay a legal obligation which ought to be met, either wholly or partially, by another. Subrogation rights place a party ... in the legal position of one who has been paid money because of the acts of a third party. Thus, the subrogee "stands in the shoes" of the subrogor and is entitled to all of the rights of its subrogor, but also suffers all of the liabilities to which the subrogor would be subject. In subrogation the subrogee, now in the same posture as the plaintiff/subrogor, acquires all rights as against the defendant/wrongdoer and is thus able to bring an action against that party to recover the monies paid.
Indemnity, on the other hand, shifts the entire loss from one who, although without active negligence or fault, has been obligated...
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