Hornstein v. Guarantee Ins. Co., 84-2044

• Decision Date: 28 May 1985
• Docket Number: No. 84-2044,84-2044
• Citation: 10 Fla. L. Weekly 1328,471 So.2d 108
• Parties: 10 Fla. L. Weekly 1328 Michael S. HORNSTEIN, Appellant, v. GUARANTEE INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 108

471 So.2d 108

10 Fla. L. Weekly 1328

Michael S. HORNSTEIN, Appellant, v. GUARANTEE INSURANCE COMPANY, Appellee.

No. 84-2044.

District Court of Appeal of Florida Third District.

May 28, 1985.

Rehearing Denied July 10, 1985.

Edward C. Vining, Jr., Miami, for appellant.

Walton, Lantaff, Schroeder & Carson and John C. Mullin, Jr. and Gregory Willis, Miami, for appellee.

Before NESBITT, BASKIN and JORGENSON, JJ.

NESBITT, Judge.

Michael Hornstein (Seller) appeals a summary judgment entered in favor of Guarantee Insurance Company (Guarantee). We affirm.

The Seller conveyed to a purchaser (Buyer) certain real property under a warranty deed. The deed warranted that the property was free from all encumbrances. The attorney who conducted the title search of the property and prepared the abstract for the Buyer failed to discover two outstanding federal tax liens on the property. The attorney was insured under a professional liability policy issued by Guarantee. In order to remove the tax liens and extinguish the Buyer's claim against the attorney, Guarantee issued a draft to the Internal Revenue Service and obtained a certificate of discharge of property from the liens. In its amended complaint, Guarantee seeks indemnification against the Seller for its damages arising out of the Seller's breach of the warranty deed on the theories of equitable subrogation and unjust enrichment. Upon motion, the trial court entered summary judgment for Guarantee for the full amount claimed.

We affirm the summary judgment on the reasoning and law as set forth in the factually indistinguishable case of Zurich General Accident & Liability Insurance Co. v. Klein, 181 Pa.Super. 48, 121 A.2d 893 (1956), where the sellers raised substantially the same points on appeal as raised by the Seller herein.

Appellee [attorney's malpractice insurer] paid a debt which was rightfully owed by appellants [sellers]. This payment by appellee was not officious since appellee was under a contractual duty to the attorney who searched the title. If his clients, the purchasers, had instituted an action against their title searcher and had recovered a judgment against him, the claim against the appellee could have been enforced by attachment execution and the appellee would have been obligated to pay the same to the purchasers. [citation omitted] Appellants have been unjustly enriched because appellee has discharged an obligation owed by appellants under such circumstances that appellants would be unjustly enriched by the retention of the benefits thus conferred. Appellants had, by general warranty deed, conveyed the premises to the purchasers. A vendor by general warranty is obliged to deliver a deed that is free of liens for taxes and he covenants to defend the grantee's title against all mankind, the whole world. [citations omitted] Appellants failed to deliver a deed free and clear of taxes and failed to pay the obligation rightfully owed by them.... It is our opinion that these facts require the application of the equitable doctrines of unjust enrichment and restitution in order to prevent a miscarriage of justice.

Appellants argue that appellee did not prove that appellants authorized appellee to pay the money; that appellee did not prove that it was acting in behalf of appellants or that it had any authority from appellants to so act; and that there was no promise, either express or implied, that appellants would reimburse appellee. None of these proofs were necessary when it was proved that appellants were unjustly enriched at the expense of appellee.

Appellants also argue that appellee was a mere volunteer .... This argument is completely nullified by proof that appellee was under contract to make good to the purchaser for the attorney title...