Peerless Ins. Co. v. Sheehan, 7082

• Decision Date: 13 January 1967
• Docket Number: No. 7082,7082
• Citation: 194 So.2d 285
• Parties: PEERLESS INSURANCE CO., a New Hampshire corporation, Appellant, v. Ruth M. SHEEHAN, Appellee.
• Court: Florida District Court of Appeals

Page 285

194 So.2d 285

PEERLESS INSURANCE CO., a New Hampshire corporation, Appellant, v. Ruth M. SHEEHAN, Appellee.

No. 7082.

District Court of Appeal of Florida, Second District.

Jan. 13, 1967.

Rehearing Denied Feb. 14, 1967.

H. O. Pemberton, of Keen, O'Kelley & Spitz, Tallahassee, Mann, Harrison, Mann & Rowe, St. Petersburg, for appellant.

Gilman M. Hammond, of Hammond & Holman, Pinellas Park, Parker & Battaglia, St. Petersburg, for appellee.

LILES, Acting Chief Judge.

Appellant, defendant below, appeals an adverse judgment rendered by the Circuit Court in favor of appellee in the amount of $9,991.43.

Appellee, plaintiff in the trial court, was involved in a three-way automobile accident with one Renne R. Allred, a resident of Texas, and John L. Lee and his wife. She brought suit against Allred and the Lees which resulted in a jury verdict adverse to plaintiff. On appeal to the District Court of Appeal, First District, the case was reversed and remanded, the court holding that the trial judge erred in denying plaintiff's motion for a directed verdict on the issue of liability. Sheehan v. Allred, 146 So.2d 760 (D.C.A.Fla.1962). A new trial was scheduled, and Allred was notified of this fact by counsel retained by appellant insurance company to represent him. He those not to appear at this trial, and a motion by appellant's counsel to withdraw as counsel of record for Allred was granted by the trial court. Plaintiff subsequently obtained a judgment against Allred. Plaintiff then brought suit against appellant to enforce her judgment. The case was heard without a jury, and a final judgment was entered against appellant.

Appellant argues first that plaintiff's proper remedy was garnishment proceedings in the court where she obtained the judgment against Allred, i.e., in Leon County, and that the Circuit Court for Pinellas County had no jurisdiction to entertain the suit.

The customary procedure when one has obtained a judgment is to pursue execution of that judgment by wa of execution or garnishment. In the instant case, however, plaintiff chose to rely on that part of the insurance contract between appellant and Allred which provides:

'6. Action Against Company--Part I: No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.

'Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter by entitled to recover under this policy to the extent of the insurance afforded by this policy. No person or organization shall have any right under this policy to join the company as a party to any action against the insured to determine the insured's liability, nor shall the company be impleaded by the insured or his legal representative. Bankruptcy or insolvency of the insured or of the insured's estate shall not relieve the company of any of its obligations hereunder.'

We construe the above-quoted section of the policy to provide plaintiff with the remedy of a direct suit against the insurance company, and thus she was not restricted solely to garnishment proceedings. Compare, Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938). It is of little protection to resident motorists if insurance companies are allowed to enter into such...