63 So. 3d 892
Fla. Dist. Ct. App.2011Background
- Lloyds seeks subrogation against Cape Publications after Brandons' fire loss was paid by Lloyds.
- Cape leased commercial space from the Brandons; rent included a pro rata share of Brandons' fire insurance premiums.
- Lease required Cape to obtain a general liability policy naming Brandons as co-insured with at least $1,000,000 limits and to indemnify Brandons for negligence related losses.
- Brandons insured the building with Lloyds; Lloyds paid the claim and demanded indemnity from Cape, which Cape refused.
- The trial court granted Cape summary final judgment; the issue was whether Cape is a co-insured/intended beneficiary under Brandons' policy.
- Appellate court adopts case-by-case approach and affirms that Cape was an intended beneficiary or co-insured, preventing Lloyds from subrogating.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Cape an intended beneficiary or co-insured under Brandons' policy? | Lloyds argues lease provisions show Cape bears the loss risk and is not a co-insured. | Cape contends pro rata premium payments and general provisions do not make it a co-insured. | Cape is an intended beneficiary or co-insured; Lloyds may not subrogate. |
Key Cases Cited
- Sutton v. Jondahl, 532 P.2d 478 (Okla. Ct. App. 1975) (landlord's insurer often subrogation barred against tenant as co-insured absent contrary agreement)
- Continental Insurance Co. v. Kennerson, 661 So.2d 325 (Fla. 1st DCA 1995) (insurer cannot subrogate against tenant where landlord procures fire insurance and tenant bears cost)
- State Farm Florida Insurance Co. v. Loo, 27 So.3d 747 (Fla. 3d DCA 2010) (analysis in subrogation context described; case-by-case framework discussed)
- Am. Family Mut. Ins. Co. v. Auto-Owners Ins. Co., 757 N.W.2d 584 (S.D. 2008) (case-by-case approach to co-insured/subrogation balancing interests)
- Rausch v. Allstate Ins. Co., 882 A.2d 801 (Md. 2005) (case-by-case contract analysis avoids vague presumptions about co-insurance)
- Page v. Scott, 567 S.W.2d 101 (Ark. 1978) (anti-Sutton rationale: inferred risk allocation when landlord bears insurance costs)
- Tri-Par Investments, L.L.C. v. Sousa, 680 N.W.2d 190 (Neb. 2004) (advocates policy rationales for or against Sutton in commercial leases)
- Dattel Family Ltd. P'ship v. Wintz, 250 S.W.3d 883 (Tenn. Ct. App. 2007) (case-by-case rationale aligned with reasonable expectations)
- Cambridge Mut. Fire Ins. Co. v. Crete, 150 N.H. 673 (2004) (illustrates co-insurance implications in lease scenarios)
- Peterson v. Silva, 428 Mass. 751 (1999) (insurer subrogation considerations under lease and insurance structure)
- Safeco Ins. Co. v. Capri, 101 Nev. 429 (Nev. 1985) (policy rationale on subrogation and co-insurance in leases)
- Lexington Ins. Co. v. Raboin, 712 A.2d 1011 (Del. Super. Ct. 1998) (considerations of insurance obligation and subrogation rights)
- DiLullo v. Joseph, 259 Conn. 847 (Conn. 2002) (public policy against economic waste in duplicative insurance)