Veal v. Voyager Prop. and Cas. Ins. Co.

• Decision Date: 21 January 2011
• Docket Number: No. 2D09-2672.,2D09-2672.
• Citation: 51 So.3d 1246
• Parties: Roy VEAL, as representative of the class certified at No. 8:04-CF0-0323 (U.S.D.C.M.D.Fla.), assignees of certain rights of Crown Auto Dealerships, Inc., Appellant, v. VOYAGER PROPERTY AND CASUALTY INSURANCE COMPANY; Voyager Service Programs, Inc.; and Pro-Tec Dealer Services, Inc., Appellees.
• Court: Florida District Court of Appeals

51 So.3d 1246

Roy VEAL, as representative of the class certified at No. 8:04-CF0-0323 (U.S.D.C.M.D.Fla.), assignees of certain rights of Crown Auto Dealerships, Inc., Appellant,

v.VOYAGER PROPERTY AND CASUALTY INSURANCE COMPANY; Voyager Service Programs, Inc.; and Pro-Tec Dealer Services, Inc., Appellees.

No. 2D09-2672.

District Court of Appeal of Florida,

Second District.

Jan. 21, 2011.

Daniel Clark of Clark & Martino, P.A., Tampa, and Craig E. Rothburd of Craig E. Rothburd, P.A., Tampa, and Raymond T. Elligett, Jr., of Buell & Elligett, P.A., Tampa, and Scott R. Jeeves of Jeeves Law Group, P.A., St. Petersburg, for Appellant.

Michael S. Hooker of Glenn Rasmussen Fogarty & Hooker, P.A., Tampa, for Appellees Voyager Property and Casualty Insurance Company and Voyager Service Programs, Inc.

No appearance for Appellee Pro-Tec Dealer Services, Inc.

DAVIS, Judge.

Roy Veal, as representative of a certified class, challenges the trial court's order dismissing with prejudice his indemnification action against Voyager Property & Casualty Insurance, Co.; Voyager Service Programs, Inc.; and Pro-Tec Services, Inc. (collectively "Appellees"). We affirm.

Veal was the named representative of a class certified in federal court to bring an action against Crown Auto Dealerships, Inc., for damages sustained by each class member as a result of his or her purchasing a Trac Guard vehicle antitheft product from Crown in conjunction with the purchase of a car from a Crown dealership.

The class members filed a five-count complaint against Crown in the United States District Court for the Middle District of Florida, alleging violations of the Truth in Lending Act, the Florida Motor Vehicle Retail Sales Finance Act, the Florida Deceptive and Unfair Trade Practices Act, and the Warranties Association Act. The complaint also sought restitution and damages for unjust enrichment.

The antitheft product at issue was purchased by Crown from Pro-Tech Services, Inc. Pro-Tech had represented to Crown that Voyager Property & Casualty Insurance Co. and/or Voyager Services Programs, Inc., would provide a warranty insurance policy for each Trac Guard product sold. Each warranty would guarantee the car owner a cash benefit should he or she experience the loss of his or her automobile by theft and either the car was not returned or, if returned, was a total loss. The warranty further provided that if the car was stolen and returned, the owner would receive up to $1000 to pay any deductible required by the owner's automobile insurance policy to repair damages sustained.

During the class action litigation, Crown learned that it had been misled by Pro-Tech in that not only had no warranty policies been registered with the State of Florida, as required by statute, but also that no warranty policies even existed.

The federal class action lawsuit was resolved with Crown agreeing to a settlement involving a payment of monetary damages to the class members but no admission of liability on the part of Crown. As part of that settlement, the class members also received

a full assignment of all rights to indemnification by Crown against the following companies, including parents, affiliates, and subsidiaries, as it relates to the sale of the Trac Guard product: Pro Tech Dealer Services, Inc. [;] Voyager Group, Inc.[;] Voyager Service Programs, Inc.[;] Voyager Property & CasualtyInsurance Company[;] Voyager Service Warranties, Inc.[;] and Voyager Insurance Company (collectively "Third Party Entities").

(Emphasis added.)

Veal subsequently brought suit against Appellees in state court, alleging one count of indemnification. Although Veal never sought to have a class certified in state court, he brought this action "as representative of the class certified at No. 8:04-CV-0323 (U.S.D.C.M.D.Fla.), assignees of certain rights of Crown Auto Dealerships, Inc." In the complaint for indemnification, Veal alleged that "in its effort to induce Crown to market and sell Pro-Tec's anti-theft [sic] warranty product, Pro-Tec informed Crown ... that the Pro-Tec anti-theft [sic] 'programs are insured by Voyager Insurance Companies.' " Veal further alleged, however, that "[a]t no time did Voyager provide insurance coverage for customer claims under the Trac Guard etch product." Veal maintained that Voyager "willfully and intentionally participated in a scheme to share the profits from the sale of Pro-Tech's product to Crown by misrepresenting insurance coverage to make the unregistered product more attractive to Crown and its customers." Finally, Veal asserted that Crown had no duty to record the insurance product but rather that section 634.1216, Florida Statutes (2008), imposes that duty on Pro-Tech and Voyager.

According to the complaint, Crown relied on Pro-Tec's assertions regarding the insurance, resulting in Crown agreeing to sell the product at its dealerships. As a result of these sales and the subsequent federal law suit, Crown paid more than $1 million to its customers for actual damages, prejudgment and postjudgment interest, costs, and attorney's fees. Based on these facts, Veal, on behalf of the class members who were acting as Crown's assignees, sought indemnification, arguing that since Crown had no statutory or legal duty to register Trac Guard with the Florida Department of Insurance or to file with the State the rates and premiums to be paid by its customers on the product, Crown's liability to the class of customers was not due to any act or omission on its...