Palm Beach Royal Hotel, Inc. v. Breese
| Decision Date | 31 May 1963 |
| Docket Number | No. 3448,3448 |
| Citation | 154 So.2d 698 |
| Parties | PALM BEACH ROYAL HOTEL, INC., a Florida corporation, Appellant, v. Mary BREESE, as surviving widow and as Administratrix of the Estate of Norman Breese, Deceased, Appellee. |
| Court | Florida District Court of Appeals |
Samuel H. Adams, of Jones, Adams, Paine & Foster, West Palm Beach, for appellant.
George J. Alboum, Miami Beach, for appellee.
The appellant, defendant below, appeals from a final judgment for the appellee which was based upon an alleged compromise and settlement agreement entered into by the defendant's attorney.
This litigation arose with the filing of a complaint for damages suffered by the plaintiff due to the death of her husband, which death was allegedly caused by the defendant's negligence in operating its swimming pool. Defendant's attorney was also the attorney for defendant's insurance carrier, and during settlement negotiations the attorney thought that he had authority from the insurance company to settle for $15,000.00. This amount was agreed to by the plaintiff. Within a very short time the defendant's attorney discovered that he was not authorized and immediately contacted the plaintiff's attorney. The record in this case consists of the defendant's attorney's statement to the court regarding his contacts with the opposing counsel and with defendant's insurance carrier. The case was continued, but after about two months, plaintiff moved for final judgment on compromise and settlement, and the lower court entered a judgment in the amount of $15,000.00 against defendant, based upon the alleged agreement. In this appeal the point involved is set out by the defendant's attorney as follows:
'Whether the trial court in this tort action properly entered final judgment for the plaintiff on an alleged compromise and settlement when the uncontradicted evidence is that defendant's attorney was not authorized to enter into the settlement and that plaintiff's counsel and the court were advised of the lack of authority and the defendant's non-consent to the settlement prior to entry of the final judgment.'
The most interesting aspect of this case is that the defendant's attorney, throughout all of these negotiations, conferred only with the insurance carrier. No statements were made to or received from the named defendant relative to settlement. Yet the judgment herein was entered against the named defendant, it being the only defendant in the case. Even assuming that the insurance company had been a named party in this suit, the facts as stated by the attorney would not have been sufficient for the judgment. And here the insurance company is not a party; there is only the one named defendant, and there is no allegation and no evidence that this party in any way ever consented to or knew of the settlement negotiations. Nor is the insurance policy that was discussed in the attorney's statement introduced into evidence. These being the facts then, it is incumbent upon the plaintiff in the lower court to offer proof as to settlement. This has not been done. The theory upon which the plaintiff rests her claim is the agency of the insurance carrier's attorney for the actual defendant.
In 5 Am.Jur., Attorneys at Law, Sec. 98, it is stated, in part:
'The rule is almost universal that an attorney who is clothed with no other authority than that arising from his employment in that capacity has no implied power by virtue of his general retainer to compromise and settle his client's claim or cause of action, * * *'
This principle is also expressed in 11 Am.Jur., Compromise and Settlement, Sec. 33, where it is stated:
'It may be stated generally that an unauthorized compromise executed by one's agent or attorney, unless subsequently ratified, is of no effect and may be repudiated or be ignored and treated as a nullity by the one in whose behalf it was executed. * * *'
For a complete annotation on this subject, see 30 A.L.R. 944.
The rule relating to attorneys was well expressed in Kramer v. City of Lakeland, Fla.1948, 38 So.2d 126, where the court commented:
In addition to the general theory of law as is announced in the City of Lakeland case, supra, our research has found several cases from other jurisdictions where the facts are practically the same as those in the instant case. In the California case of Jones v. Noble, 1934, 3 Cal.App.2d 316, 39 P.2d 486, where an alleged agreement was set aside, the court stated, in part:
'* * * When such authority is challenged and want of authority put in issue in an action to enforce such an agreement for breach of performance, there must be evidence showing the giving of such authority to compromise, or of consent...
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Sockolof v. Eden Point North Condominium Ass'n, Inc., 81-2311
...cause of action. Cross-Aero Corp. v. Cross-Aero Service Corp., 326 So.2d 249, 250 (Fla. 3d DCA 1976); Palm Beach Royal Hotel, Inc. v. Breese, 154 So.2d 698 (Fla. 2d DCA 1963). We think, however, that the present case falls within an exception to this general rule. This exception, recognized......
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...appellant authorized or ratified the purported settlement. Walters v. Boscia, Fla.App.1965, 179 So.2d 133; Palm Beach Royal Hotel, Inc. v. Breese, Fla.App.1963, 154 So.2d 698; Bursten v. Green, Fla.App.1965, 172 So.2d Finally, it is the policy of the law to encourage and favor the compromis......
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Massachusetts Casualty Insurance Co. v. Forman, 72-2451 Summary Calendar.
...by a party's attorney is insufficient." Goff v. Indian Lake Estates, Inc., 178 So.2d 910, 912 (Fla.App.1965); Palm Beach Royal Hotel, Inc. v. Breese, 154 So.2d 698 (Fla. App.1963). Authority to compromise a disputed claim cannot be assumed from employment of counsel to handle the litigation......