Dawson v. National Home Ins. Co., 61-261
| Decision Date | 05 March 1962 |
| Docket Number | No. 61-261,61-261 |
| Citation | 138 So.2d 356 |
| Parties | J. W. DAWSON, a/k/a John W. Dawson, Appellant, v. NATIONAL HOME INSURANCE COMPANY, a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Alfred D. Bieley and William D. Fabing, Miami, for appellant.
Stephens & Hames, Miami, for appellee.
Before PEARSON, TILLMAN, C. J., and CARROLL and HENDRY, JJ.
The appellant, then plaintiff, brought a complaint in equity against his insurance carrier upon his automobile liability policy. The trial court dismissed the complaint. The question presented is whether the complaint stated a cause of action cognizable in equity.
The essential allegations of the complaint as amended are:
(1) The policy provided that the plaintiff was insured against stated liability.
(2) While the policy was in force, one of the automobiles included thereunder was involved in an accident out of which a claim arose.
(3) Plaintiff was sued and the company defended.
(4) The suit resulted in a judgment in an amount within the policy limits and demand was made upon the company to pay the judgment.
(5) The company paid the judgment, but did not satisfy it. Instead, the company took an assignment of the judgment in the name of their attorney.
(6) The judgment constitutes a cloud on the plaintiff's good name and credit.
Plaintiff prayed for specific performance of the contract of insurance by satisfaction of the judgment and for attorney's fees.
Appellant contends that only equity gives adequate relief. He claims a right to a decree expunging the offending final judgment from the public record or to a mandatory injunction.
The appellee contends that the plaintiff has an adequate remedy at law in that he could sue for damages for breach of the insurance contract. He relies upon Cook v. Central & Southern Flood Control District, Fla.App.1959, 114 So.2d 691, wherein it was held that a court of equity is without jurisdiction to decide a suit seeking only a money judgment.
It seems to us that the plaintiff-appellant seeks more than a money judgment. He says he wants to get a judgment of record satisfied, so that his credit will not be further impaired.
If the complaint is susceptible to this interpretation, and we think it is, then we must determine whether such relief may be granted under the law of this state, and if the complaint makes a case for such relief.
Referring to the amended complaint, paragraph numbered five reads:
'5. Plaintiff further alleges that the Defendant insurance carrier has failed to satisfy said judgment and cost judgment hereinbefore described, but instead of satisfying said judgment has paid out various monies through their counsel of record in this cause, and thereafter secured an assignment of said judgment from the judgment creditor Stefanelli to Messrs. Angus M. Stephens and ...
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Furlong v. Leybourne
...court stated: "While the appellee cannot recover from the estate since it has long been closed for the filing of creditor claims, * * *.' 138 So.2d 356.' 'The statement, above, referred to the widow, and was equally applicable to the children. The estate of the deceased cannot, by our previ......
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Krantzler v. Board of County Com'rs of Dade County
...170, 25 So.2d 373 (1946), and the complaint must be viewed most favorably to the pleader, Brandon, supra; Dawson v. National Home Insurance Company, 138 So.2d 356 (Fla.3d DCA 1962). Therefore, we find that the trial court erred in ruling that plaintiffs' complaint was inadequate to invoke i......
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Leybourne v. Furlong, 63-262
...court stated: 'While appellee cannot recover from the estate since it has long been closed for the filing of creditor claims, * * *.' 138 So.2d 356. The statement, above, referred to the widow, and was equally applicable to the children. The estate of the deceased cannot, by our previous de......