Tampa Port Authority v. M/V Duchess
| Decision Date | 08 December 1997 |
| Docket Number | No. 94-1727-CIV-T-23C.,94-1727-CIV-T-23C. |
| Citation | 65 F.Supp.2d 1299 |
| Parties | TAMPA PORT AUTHORITY, Plaintiff, and Westchester Fire Insurance Co., Intervening Plaintiff, v. M/V DUCHESS, In Rem, and BT Straits, Inc., In Personam, Defendants/Third Party Plaintiff, v. Pilot Lambert W. Ware, Third Party Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Lance Sheldon Hamilton, Holland & Knight, LLP, Tampa, FL, for Tampa Port Authority.
Donald Lee Craig, E. Tyron Brown, Butler, Burnette & Pappas, Tampa, FL, for Westchester Fire Insurance Company.
Nathaniel G.W. Pieper, Lau, Lane, Pieper, Conley & McCreadie, P.A., Tampa, FL, for M/V Duchess, BT Straits, Inc.
Margaret Diane Mathews, Anthony John Cuva, Akerman, Senterfitt & Eidson, P.A., Tampa, FL, for Lambert M. Ware, Pilot.
Before the court is Westchester Fire Insurance Company's Motion To Alter or Amend Judgment (Dkt.173) and the response by Tampa Port Authority (Dkt.184).1
On June 6, 1997, following a bench trial, this court entered a memorandum opinion in which it found that in rem defendant M/V DUCHESS was liable for negligence for striking and damaging a pier owned by Tampa Port Authority ("TPA"). (Dkt.151). The court further found that the amount of damages recoverable from the DUCHESS was $151,642 plus prejudgment interest. The court also found that TPA's insurer, Westchester Fire Insurance Company ("Westchester"), had previously paid TPA $338,117 on its claim for this damage, reserving a right to subrogation. Accordingly, the court's judgment awarded $151,642 plus prejudgment interest to "Plaintiff Tampa Port Authority and its subrogee Westchester Fire Insurance Company." (Dkt.172). Westchester now seeks to exercise its right of subrogation and asks the court to modify the judgment to state that Westchester, not TPA, is entitled to recover the $151,642 plus prejudgment interest from M/V DUCHESS.
The law of subrogation is well settled in Florida and in many other states that an insured must be fully compensated for its losses before the insurer can share in any recovery from the tortfeasor.2 See Magsipoc v. Larsen, 639 So.2d 1038, 1040-41 (Fla. 5th DCA 1994); Rubio v. Rubio, 452 So.2d 130, 132 (Fla. 2d DCA 1984); Florida Farm Bureau Ins. Co. v. Martin, 377 So.2d 827, 831 (Fla. 1st DCA 1979); see also Elaine M. Rinaldi, Apportionment of Recovery Between Insured and Insurer in a Subrogation Case, 29 Tort & Ins.L.J. 803, 807 (1994) ().
Westchester does not dispute this rule of law, but contends that this court's award of $151,642 in damages made TPA whole. TPA, on the other hand, argues that it has not been made whole because its actual repair costs exceeded the total of the damages awarded by the court and the claim amount recovered from Westchester. TPA also contends that its $200,000 in attorneys' fees and costs must be considered in determining whether it has been made whole.
The dispute, therefore, centers around what damage elements may be considered in determining whether an insured has been made "whole." Both Westchester and TPA claim support for their respective positions in Florida Farm Bureau Ins. Co. v. Martin, 377 So.2d 827 (Fla. 1st DCA 1979). In Florida Farm Bureau, the insured, the insurer, and the tortfeasor all stipulated during the course of the litigation that the damages sustained by the insured totaled $110,000. The parties also stipulated that the insured's maximum possible recovery, including payments by the insurer, the tortfeasor, and the tortfeasor's insurer was $95,035.3 See id. at 828. The trial court denied the insurer's request for subrogation because, based on the stipulations, the insured would not be made whole. The appellate court upheld the trial court's ruling, citing "general principles of subrogation" found in the case law of Florida and other states. Id. at 831.
Unlike the parties in Florida Farm Bureau, however, the parties in the present case did not stipulate to an amount of damages sustained by TPA.4 Rather, the damages were determined in a trial before the court. Therefore, Florida Farm Bureau offers little guidance in this situation, where the damages were determined through litigation rather than by stipulation. The only language in Florida Farm Bureau relevant to the present case is found in a quote from an earlier case: "We consider that a party ... has received full compensation for his loss, within the meaning and application of the general principles [of subrogation] ... when he has received full payment of a judgment ... or an agreed settlement." Id. at 831 (quoting Gov't Employees Ins. Co. v. Graff, 327 So.2d 88 (Fla. 1st DCA 1976)). This language strongly suggests that TPA would be made whole upon receipt of the $151,642 awarded by the court judgment. Nevertheless, because this language is dicta, it is appropriate to examine cases with factual scenarios more similar to the present case.
The parties have not cited and the court's research has not yielded any cases construing Florida subrogation law in which an insured argued that it was not made whole by a court judgment. However, appellate courts in other states which have considered this issue have held that a jury verdict constitutes full recovery for purposes of determining whether an insurer is entitled to subrogation. See Bartunek v. Geo. A. Hormel & Co., 2 Neb.App. 598, 513 N.W.2d 545, 554 (1994); United Pac. Ins. Co. v. Boyd, 34 Wash.App. 372 661 P.2d 987, 990 (1983) ("Boyd"). Applying the doctrine of collateral estoppel, the courts in these cases concluded that, once the issue of damages was fully litigated before the jury, the insured was precluded from claiming that the damages awarded by the jury did not constitute full compensation. See Bartunek, 513 N.W.2d at 554; Boyd, 661 P.2d at 990. As the Bartunek court stated: "While [the insured] may place a greater value on his damages than the jury did (he asserts loss of earnings in excess of $240,000 in his brief), the law considers that he has obtained `full recovery.'" Bartunek, 513 N.W.2d at 554; see also Rimes v. State Farm Mut. Auto. Ins. Co., 106 Wis.2d 263, 316 N.W.2d 348, 354 (1982) ().
Although Bartunek and Boyd are not binding authority, these cases represent sound reasoning which this court believes the Florida Supreme Court would follow if it were to face this issue. Therefore, if the issue of TPA's damages has been fully litigated before the court, TPA is precluded from claiming that the court's award did not make it whole.
In the pretrial statement, TPA listed the following in the section entitled "Statement of the Elements of Damages Sought":
Repair Cost $522,759.00
20% of Repair Cost $104,551.80
Survey & Diving Report $ 18,860.73
AMDIVER Marine Services $ 720.00
Contractor's Delay $ 15,814.98
Interest [no amount provided]
Attorneys' Fees [no amount provided]
(Dkt.48, p. 8). These damage categories totaled $662,706.51. In its trial brief, TPA stated: (Dkt.60, p. 30-31) (emphasis added).
TPA, therefore, requested that this court grant it the damages necessary to make it whole, and calculated those damages to be $324,589.51. The court instead awarded $151,642.00. The court's memorandum opinion explained the court's reasons for rejecting the higher level of damages sought:
The other estimates of the cost of repair were predicated on the assumption that the outer 90-foot section of the Pier was so damaged by the DUCHESS allision alone that demolition and reconstruction of the outer section was required. This assumption is not supported by the preponderance of credible evidence. Rather, it is apparent that the fender renovation project was simply a "band-aid approach" to a seriously deteriorated structure.... To award plaintiff the sum it paid Durocher for the additional work ($522,759) — or the cost of repair paid by its insurer ($390,355) — would be an undeserved windfall under the circumstances presented.
(Dkt.151, p. 40-41). Therefore, TPA's claim that it should recover for additional repair costs above $151,642 was previously considered and rejected by this court. TPA is thus collaterally estopped from arguing that it must recover for these additional costs in order to be made whole.
TPA also asserts that it is entitled to recover its fees and costs prior to Westchester recovering any damages through subrogation. In support of this assertion, TPA again relies on Florida Farm Bureau, wherein the court affirmed the general rule of subrogation as being that the insurer may recover only the excess remaining "`after insured is fully compensated for his loss and the cost and expenses of the recovery thereof.'" Florida Farm Bureau, 377 So.2d at 829 (quoting 46 C.J.S. Insurance $ 1209...
To continue reading
Request your trial
-
Royal Caribbean Cruises, Ltd. v. Cox
...WL 714898, at *10 (M.D.Fla. May 13, 1997); see also Tampa Port Auth. v. M/V Duchess, 65 F.Supp.2d 1279, 1296–97 (M.D.Fla.1997), amended,65 F.Supp.2d 1299,affirmed,184 F.3d 822 (11th Cir.1999) (table), other federal courts have considered whether state fee-shifting statutes may supplement fe......
-
Royal Caribbean Cruises, Ltd. v. Cox
...WL 714898, at *10 (M.D. Fla. May 13, 1997); Tampa Port Auth. v. M/V Duchess, 65 F. Supp. 2d 1279, 1296-97 (M.D. Fla. 1997), amended, 65 F. Supp. 2d 1299, affirmed, 184 F.3d 822 (11th Cir. 1999) (table). Furthermore, this Court's case law subsequent to Modesto may support RCCL's position tha......
-
State Farm Mut. Auto. Ins. Co. v. Perkins
...have held that a jury verdict constitutes a full recovery for the purposes of the made whole doctrine. See Tampa Port Auth. v. M/V Duchess, 65 F.Supp.2d 1299, 1301-02 (M.D.Fla.1997); Bartunek v. Geo. A. Hormel & Co., 2 Neb.App. 598, 513 N.W.2d 545, 554 (1994); United Pac. Ins. Co. v. Boyd, ......
-
World Trade Ctr. Props. LLC v. Qbe Int'l Ins. Ltd.
...Inc. v. U.S. United Ocean Servs., LLC, No. 09-cv-6233, 2011 WL 2550624, at *15 (E.D. La. June 27, 2011); Tampa Port Auth. v. M/V Duchess, 65 F. Supp. 2d 1299, 1302 (M.D. Fla. 1997); Travis v. Rialto Furniture Co., 220 A.2d 179, 181 (R.I. 1966); Birch v. Fire Ins. Exch., 122 P.3d 696, 699-70......