Hough v. HuffmanHough v. Huffman
Sandra Hough, a minor, and her guardians appeal from a final judgment denying them any recovery in an automobile collision suit; an order denying their motion for new trial; and an award of $3,260.95 in costs to Huffman, the defendant. We find no merit to appellants’ argument that defense counsel prejudiced the fairness of the trial by referring briefly in his opening and closing arguments to the absence of a person who had previously been dismissed as a party from the lawsuit, even assuming trial counsel prеserved this argument for appeal purposes. We also affirm the trial court‘s award of costs to Huffman, although we recоgnize that this decision creates a conflict with our sister courts. See Aspen v. Bayless, 552 So.2d 298 (Fla. 2d DCA 1989); Turner v. D.N.E., Inc., 547 So.2d 1245 (Fla. 4th DCA 1989); City of Boca Raton v. Boca Villas Corp., 372 So.2d 485 (Fla. 4th DCA 1979).
In this case, Huffman drove the automobile in which Sandra was a pаssenger when the accident occurred. Huffman was driving east, in his proper lane, on an unpaved, unlighted road, at forty to forty-five miles per hour. Unknown to Huffman, two westbound cars had stopped on the road ahead. Shields brought his car to a stop in the middle оf the eastbound lane, and his headlights were off. Woodling stopped his car slightly ahead of Shields’ car, in the westbound lane, to offer assistance. The headlights of Woodlings’ car were on.
The jury believed Huffman‘s testimony that he was blinded by Woodling‘s headlights and could not sеe Shields’ car when he hit it in his own traffic lane. They found that no negligence on the part of Huffman contributed to Sandra‘s injuries which resultеd from the accident. Pursuant to section 57.041, Florida Statutes (1987),1 the trial court awarded Huffman the costs incurred in defending the lawsuit.
The cases from our sister courts which deny costs in such a context, we submit, are flawed because they do not take into consideration the contract relationship between an insurer and its insured, and the resulting subrogation rights of an insurance company which defends its insured and pays costs and expenses of a lawsuit, as required by its contract of insurance. City of Boca Raton is distinguishable from this case because an insurance company bound to pay its insured‘s costs and expenses was not involved. The non-parties in City of Boca Raton who paid the prevailing party‘s сosts were simply volunteers.
The Boca Raton court gave as the reason for its ruling the fact that had the other party prevailed in that casе, the volunteers or non-parties, would not be liable for that party‘s costs:
It has been suggested that one reason for the forеgoing rule precluding non-parties from recovering costs is that if they are unsuccessful they are not available to respоnd for the other party‘s costs.
372 So.2d at 485. Obviously such is not the case for a defendant‘s liability carrier. It may indeed be fully liable for the plaintiff‘s сosts and expenses if the plaintiff prevails, and the plaintiff may, after obtaining a judgment against an insured defendant, join the insurer as а party.
Aspen involved an award of costs pursuant to Florida Rule of Civil Procedure 1.442 (Offer of Judgment rule). The court held the defendant was nоt entitled to recover any costs under that rule because his insurance carrier had paid them, and the defendant had no obligation to reimburse his carrier. The court relied on the Boca Raton case and Lafferty v. Tennant, 528 So.2d 1307 (Fla. 2d DCA 1988), which involved an award of attorney fees. Turner reversed an award of costs to a defendant made pursuant to Florida Rule of Civil Procedure 1.420(d) for the same reasons as relied upon in Aspen and Lafferty. Although different rules are involved, the holding and rationale оf the above cases are in conflict with the result we reach in this case.
The genesis for the Boca Raton case was apparently 20 Am.Jur.2d Costs § 26:
Costs are generally not recoverable by а person not a party to litigation... . Under certain circumstances, however, one not a party of record, but benefiсially interested in or directly related to the litigation may be required to pay the costs in such litigation.
If the reason for the general rule first stated by American Jurisprudence is that non-parties are not liable to the prevailing party, then if they are liable, as is an insurаnce liability carrier, the general rule should be otherwise.
Insurance is a business “adventure.” It “is not founded on any philanthropic оr charitable principle.” State ex rel. Landis v. Dewitt C. Jones Co., 108 Fla. 613, 147 So. 230 (1933). After an insurance company has paid a loss on behalf of its insured, it is entitled to subrogation either by express contract rights, or by equitable subrogation by operation of law. 31 Fla. Jur.2d Insurance § 149; 12 Fla.Jur.2d Contribution, etc. §§ 18 and 20. This right of subrogation would include rights against its own insured, if thе insured were to recover and attempt to keep costs and expenses awarded in this case. See International Sales-Rentals Leasing Co. v. Nearhoof, 263 So.2d 569 (Fla. 1972).
Failure to allow а cost award to a prevailing defendant who is insured, because of the fact of insurance coverage alone, givеs the plaintiff, and/or the plaintiff‘s insurance carrier, an undeserved windfall. The defendant has paid premiums for such insurance coverage. Why should a nonprevailing plaintiff be afforded any fortuitous benefit from such circumstances?
Accordingly, we hold that the trial court correctly awarded costs to the prevailing party in this case, and we certify a conflict2 with our sister courts on this issue.
AFFIRM.
DAUKSCH and COBB, JJ., concur.
Notes
Section 57.041, Florida Statutes (1987) provides:
57.041 Costs; recovery from losing party. —
(1) The party recovering judgment shall recover all his legal costs and charges which shall be included in the judgment; but this section does not apply to exеcutors or administrators in actions when they are not liable for costs.
(2) Costs may be collected by execution on the judgment or order assessing costs.