Union Cent. Life Ins. Co. v. Carlisle

• Citation: 566 So.2d 1335
• Decision Date: 05 September 1990
• Docket Number: 89-1879,Nos. 89-1370,s. 89-1370
• Parties: 15 Fla. L. Weekly D2219 UNION CENTRAL LIFE INSURANCE COMPANY, Appellant, v. Danielle CARLISLE, through her guardians and parents, Deborah Carlisle, individually, as Mother of Danielle Carlisle, and Edward Carlisle, individually, as Father of Danielle Carlisle, et al., Appellees.
• Court: Court of Appeal of Florida (US)

Page 1335

566 So.2d 1335

15 Fla. L. Weekly D2219

UNION CENTRAL LIFE INSURANCE COMPANY, Appellant, v. Danielle CARLISLE, through her guardians and parents, Deborah Carlisle, individually, as Mother of Danielle Carlisle, and Edward Carlisle, individually, as Father of Danielle Carlisle, et al., Appellees.

Nos. 89-1370, 89-1879.

District Court of Appeal of Florida,

Fourth District.

Sept. 5, 1990.

Motion to Lift Stay Denied

Oct. 19, 1990.

Rehearing Denied Oct. 19, 1990.

John W. Thornton of Thornton & Mastrucci, P.A., and Jeanne Heyward, Miami, for appellant.

Gene K. Glasser and Mary Jo Meives of Abrams, Anton, Robbins, Resnick & Schneider, P.A., Hollywood, for appellees.

LETTS, Judge.

In a medical malpractice action, the insurer, which had paid out $514,000 in health benefits under a group policy, was denied the right to intervene in the main suit brought by the injured party. We affirm.

Florida Rule of Civil Procedure 1.230 provides that "Anyone claiming an interest in pending litigation may at any time be permitted to assert his right of intervention." (emphasis supplied.) Obviously, this is a very broad directive but, by the same token, it imparts equally broad discretion to the trial judge. In the case at bar, the trial judge refused to allow the intervention ¹ and we find no abuse of discretion in that refusal.

It is true that in Southland Life Insurance Company v. Abelove, 556 So.2d 805, 806 (Fla. 5th DCA 1990), the Fifth District found such an abuse and enunciated the test "[t]o determine whether a trial court has abused its discretion in denying a motion for intervention," quoting Morgareidge v. Howey, 75 Fla. 234, 78 So. 14, 15 (Fla.1918) as follows:

[T]he interest which will entitle a person to intervene under this provision must be in the matter in litigation, and of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment. In other words, the interest must be that created by a claim to the demand in suit or some part thereof, or a claim to, or lien upon, the property or some part thereof, which is the subject of litigation.

It goes without saying, in the case at bar, that the insurer seeking to intervene "will either gain or lose by the direct legal operation and effect of the judgment." It has paid out over a half million dollars in health benefits to the injured party who in her main action is claiming in part, as the subject of her litigation, damages for the "expense of hospitalization, medical and nursing care and treatment"--the very same damages which occasioned the $514,000 payment. Moreover, as will be discussed in more detail hereafter, the injured party is obligated to reimburse the insurer for all collateral source monies received under the group policy. Obviously, if the suit is not successful, the insurer will not be reimbursed and its interest therefore We are aware also that the Fifth District in Abelove alluded to a further condition for intervention, namely that the intervenor must have some "fears" that its "interests will not be fully protected by the original plaintiff's suit...." To this end, the Fifth District cites to Bay Park Towers Condominium Association, Inc. v. H.J. Ross and Associates, 503 So.2d 1333 (Fla. 3d DCA 1987). With the utmost of respect, we can find no such condition expressed in Bay Park Towers, but even if it had been, we feel the condition is fulfilled sub judice by the very fact of filing a complaint in intervention. Why else try to intervene if it is not because the insurer is apprehensive that its rights are not fully protected?

is certainly "of a direct and immediate character."

In the briefs and during oral argument of this case, there was discussion about subrogation. There are several cases approving of intervention where insurance policies have subrogation clauses. See, e.g., Southland Life Insurance Company v. Abelove; Blue Cross of Florida Inc. v. O'Donnell, 230 So.2d 706 (Fla. 3d DCA 1970) and Blue Cross and Blue Shield of Florida, Inc. v. Matthews, 498 So.2d 421 (Fla.1986). ² On the other hand, there are many other cases which clearly indicate that a subrogation clause in a personal injury suit is not the only appropriate occasion for intervention. See, e.g., Brickell Bay Condominium Association, Inc. v. Forte, 410 So.2d 522 (Fla. 3d DCA 1982); Morgareidge v. Howey, supra. ³ Nonetheless, the question of subrogation is not irrelevant sub judice because, while the policy in question does not contain a classic subrogation clause, and the magic word "subrogation" never appears, it does contain a provision which requires the injured victim to repay the insurer from the recovery in the main action. That provision reads as follows:

RIGHT OF REFUND

When This Provision Applies. The covered person may incur medical or dental charges due to injuries for which benefits are paid by the Policy. The injuries may be caused by the act or omission of another person. If so, the covered person may have a claim against that other person for payment of the medical or dental charges. If recovery under the claim is made, the covered person must repay to the Insurer the recovery made from: (a) the other person or (b) the other person's insurer.

This clause does not directly grant subrogation rights to the insurer against a third party tort-feasor. ⁴ Instead, it merely requires the insured to repay the insurer out of any recovery obtained. Nonetheless, the clause appears to us to grant to...