Gould v. Weibel
| Decision Date | 22 December 1952 |
| Citation | 62 So.2d 47 |
| Parties | GOULD et al. v. WEIBEL. SLIMER v. WEIBEL. |
| Court | Florida Supreme Court |
Shackleford, Farrior, Shannon & Stallings, Tampa, for appellants.
Lindsey & Cargell, St. Petersburg Beach, and Mann, Harrison & Stone, St. Petersburg, for appellee.
The sole question here is whether an insurance company must be joined as a party plaintiff in a suit by the insured against a third party tort-feasor where the insurance company has advanced to the insured, by means of a 'loan receipt' transaction, an amount equal to the insured's loss and for which the suit against the third party is being prosecuted.
The loan receipt agreement in the instant case was of a type which appears to be in general use throughout the country. Under its terms, the insurance company advanced as a 'loan' to the insured the amount of his loss to the extent of the company's liability, which loan was repayable to the company only in the event and to the extent of any net recovery the insured should make from those liable for the loss. It was also provided therein that the insured would make claim to and prosecute suit for the recovery thereof, and that 'Any legal proceedings are to be under the exclusive direction and control of said company.'
In the instant suits (which were consolidated for trial and for the purpose of this appeal), the trial judge required the plaintiffs, the appellants here, to amend their complaints to show that suit was being brought 'for the use and benefit of' their respective insurers, the sole basis for such action being--so far as the record shows--the loan receipt transactions above referred to. The jury found in favor of the defendant in both cases, judgments were entered thereon, and this appeal followed.
While there are some decisions to the contrary, see Cleveland Paint & Color Co. v. Bauer Mfg. Co., 155 Ohio 17, 97 N.E.2d 545; Deming v. Merchants' Cottonpress & Storage Co., 90 Tenn. 306, 17 S.W. 89, 13 L.R.A. 518, it is generally held that a 'loan receipt' arrangement is a lawful agreement and that the loan thus made is not, per se, such a payment of insurance as to make the insurer the 'real party in interest' under statutes requiring suit to be brought by such party. See Eber Bros. Wine & Liquor Corp. v. Firemen's Ins. Co., D.C., 30 F.Supp. 412; Blair v. Espeland, 231 Minn. 444, 43 N.W.2d 274; Klukas v. Yount, 121 Ind. 160, 98 N.E.2d 227; National Shawmut Bank of Boston v. Johnson, 317 Mass. 485, 58 N.E.2d 849; Shiman Bros. & Co. v. Nebraska Nat. Hotel Co., 143 Neb. 404, 9 N.W.2d 807; Dixey v. Federal Compress & Warehouse Co., 8 Cir., 132 F.2d 275; Newco Land Co. v. Martin, 358 Mo. 99, 213 S.W.2d 504.
The opinion most frequently cited by the courts in upholding the validity of loan receipt transactions is that of the Supreme Court of the United States in Luckenbach v. W. J. McCahan Sugar Refining Co., 248 U.S. 139, S.Ct. 53, 55, 63 L.Ed. 170. In that case, it appears that the liability of the insurer was contingent upon the outcome of litigation between the insured and a third party. The Supreme Court stated that 'Whether the transfer of money or other thing shall operate as a payment, is ordinarily a matter which is determined by the intention of the parties to the transaction', and in giving full force and effect to the loan receipt transaction involved in that case, stated that 'It is creditable to the ingenuity of businessmen that an arrangement should have been devised which is consonant both with the needs of commerce and the demands of justice.'
In the instant cases, the insurance policies upon which the insurers' liability was based are not before this court; nor is there anything in the record to show what was the actual intention of the parties in entering into the 'loan receipt' agreements. Even if it be assumed, however, that the liability of the insurers was absolute (and not contingent, as in the Luckenbach case), we are not persuaded that this fact, together with the advancements under the loan receipt agreements, is conclusive on the question of whether the insurers were necessary parties plaintiff in the instant suits. As stated in Blair v. Espeland, supra: [231 Minn. 444, 43 N.W.2d 277.]
A case very similar in its facts to the instant case is Capo v. C-O Two Fire Equipment Co., D.C., 93 F.Supp. 4, 6, where the insured had been advanced, as a 'loan', the amount of his loss by fire and where the liability of the insurer was absolute, rather than contingent. The insured thereafter brought suit against a...
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Northern Indiana Public Service Co. v. Otis
...in its name.' Klukas v. Yount, supra, has been cited with approval in Bolton v. Ziegler, 111 F.Supp. 516 (N.D. Iowa 1953); Gould v. Weibel, Fla., 62 So.2d 47 (1952) and Crocker v. New England Power Co., 348 Mass. 159, 202 N.E.2d 793 (1964); Western Spring Service Co. v. Andrew, 229 F.2d 413......
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Tanker Management, Inc. v. Brunson, s. 89-3778
...insured bars a subsequent suit by an insurer on the same claim even if the insurer was not joined as a party to the suit. Gould v. Weibel, 62 So.2d 47, 49 (Fla.1952). Appellee correctly notes that in both Florida and Federal court insurers generally will not be joined as indispensable parti......
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Holyoke Mut. Ins. Co. in Salem v. Concrete Equipment, Inc.
...benefit of itself, the real party in interest. The legerdemain which gives Concrete's challenge illusory support occurs in Gould v. Weibel, 62 So.2d 47 (Fla.1952). There, citing Atlantic Coast Line Railroad Co. as authority, the Supreme Court declared, in dictum 2: "Under the law of this st......
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Rosenthal v. Scott, 30961
...query was the real question in Mims regardless of a subsequent indication that the loan receipt was a subrogation agreement.2 Gould v. Weibel, Fla., 62 So.2d 47; Underwood v. Dooley, 197 N.C. 100, 147 S.E. 686, 64 A.L.R. 656, and Underwriters at Lloyds Ins. Co. v. Vicksburg Traction Company......