State Farm Fire & Cas. Co. v. Pritcher

• Decision Date: 04 April 1989
• Docket Number: 88-1238,Nos. 88-1019,s. 88-1019
• Citation: 546 So.2d 1060,14 Fla. L. Weekly 847
• Court: Florida District Court of Appeals
• Parties: 14 Fla. L. Weekly 847 STATE FARM FIRE & CASUALTY COMPANY, Appellant, v. Nathan PRITCHER and Carl Spatz, Appellees.

Page 1060

546 So.2d 1060

14 Fla. L. Weekly 847

STATE FARM FIRE & CASUALTY COMPANY, Appellant, v.Nathan PRITCHER and Carl Spatz, Appellees.

Nos. 88-1019, 88-1238.

District Court of Appeal of Florida Third District.

April 4, 1989.

Rehearing Denied Aug. 10, 1989.

Walton, Lantaff, Schroeder & Carson and Robert L. Teitler, Miami, for appellant.

Stephens, Lynn, Klein & McNicholas and Philip D. Parrish, Miami, for appellees.

Before SCHWARTZ, C.J., and BARKDULL and COPE, JJ.

PER CURIAM.

The appellee Pritcher, a client of attorney Spatz, contracted to purchase a property owned by parties named Kauffman, and insured by State Farm Fire & Casualty Company.The policy had a provision that no assignment would be valid unless State Farm gave written approval.At the time of closing Spatz gave notice of an assignment of the policy to Pritcher, to State Farm, but received no written approval.Subsequently, Pritcher suffered a loss, filed a claim with State Farm, which was denied because of no valid assignment.Pritcher then brought an action against State Farm on the policy and against Spatz for negligence.In this action, Spatz cross-claimed against State Farm seeking a declaratory decree that there was, in fact, a valid assignment.The trial court proceeded to try the issues, and held that there was an equitable assignment and rendered relief against State Farm, in favor of Pritcher.Subsequently, Pritcher dismissed his action against Spatz.Spatz sought attorney's fees against State Farm under the "wrongful act" doctrine pronounced in F & R Builders, Inc. v. United States Fidelity and Guaranty Company, 490 So.2d 1022(Fla. 3d DCA1986);¹Canadian Universal Insurance Company v. Employers Surplus Lines Insurance Company, 325 So.2d 29(Fla. 3d DCA1976);andMilohnich v. First National Bank of Miami Springs, 224 So.2d 759(Fla. 3d DCA1969).The trial court awarded same to Spatz in the amount of $37,850.00.Thereafter this appeal ensued.We reverse.

Spatz was not the wronged party.Under the "wrongful act" doctrine that would have been Pritcher, except for the finding of an equitable assignment.See and compareBehar v. Jefferson National Bank at Sunny Isles, 519 So.2d 641(Fla. 3d DCA1988);Glace & Radcliffe, Inc. v. City of Live Oak, 471 So.2d 144(Fla. 1st DCA1985);Milohnich v. First National Bank of Miami Springs, supra.Where a defendant has committed a wrong toward the plaintiff, and the wrongful act has caused the plaintiff to litigate with third persons, the wrongful act doctrine permits the plaintiff to recover, as an additional element of damages, plaintiff's third party litigation expense.SeeCanadian Universal Ins. Co. v. Employers Surplus Lines Ins. Co., supra;Restatement of Torts2d § 914;see alsoManning v. Loidhamer, 13 Wash.App. 766, 538 P.2d 136, 138(1975).The wrongful act doctrine does not create an independent cause of action; instead, it allows a claim for attorney's fees as special damages in the circumstances just stated.²But for the failure of Spatz to properly close the real estate purchase by failing to get written approval of assignment of the policy, State Farm would never have denied Pritcher's claim.He should not be permitted to recover fees which he suffered because of his failure to properly close the transaction.The fact that the trial court ultimately held that State Farm had to equitably recognize the assignment of its policy and honor Pritcher's claim does not excuse Spatz' failure to properly represent Pritcher in the first instance and see that the assignment of the policy was in accordance with its terms.Therefore, the order awarding fees under review be and the same is hereby reversed with directions to deny the relief sought by Spatz.

Reversed and remanded with directions.

BARKDULL and COPE, JJ., concur.

SCHWARTZ, Chief Judge (specially concurring).

I entirely agree with the court's decision and underlying reasoning.I write separately only to note that the result is not dependent upon an endorsement of F & R Builders, Inc. v. United States Fidelity & Guaranty Co., 490 So.2d 1022(Fla. 3d DCA1986), and to indicate my views that, even on its own facts, F & R was wrongly decided insofar as it approves the recovery of attorney's fees expended in pursuing the action by the excess carrier against the primary insurer.Such a holding is contrary to what was previously a unanimity of authority on this point.SeeUnited States Auto. Ass'n v. Hartford Ins. Co., 468 So.2d 545(Fla. 5th DCA1985), pet. for review denied, 476 So.2d 676(Fla.1985);American Foreign Ins. Co. v. Avis Rent-A-Car Sys., 401 So.2d 855(Fla. 1st DCA...