Kephart v. PickensKephart v. Pickens
Appellant-plaintiff, Augusta Kephart, appeals from an order dismissing with prejudice аn amended complaint in an action for damages arising out of an automobile-pedestrian collision. We affirm.
The collision in quеstion occurred in Lexington, Kentucky. The complaint alleges that Jack Pickens (Pickens), a Kentucky resident, negligently operated his automobile so as to cause the automobile to collide with the plaintiff, Augusta Kephart (Kephart), a Florida resident. Suit was filed in Orangе County, Florida. Process was served upon Nationwide Mutual Insurance Co. (Nationwide), which is a foreign
Nationwide filed a motion to dismiss the complaint for insufficiency of service of process on the ground that there is no right of “direct action” in Florida which would authorize Kephart to institute an action against an insurance company without joinder of the insured. The triаl court granted the motion to quash the service of process and dismissed the complaint with prejudice. This appeal followed.
Initially, we note that the dismissal of the complaint with prejudice predicated upon insufficiency of service of process on the insurer was erroneous. An insurer authorized to do business in Florida may be served in any civil action in this state, and such service is valid and binding if the provisions of Florida Statutes
An indispensable party is one whose interest in the subject matter of the action is such that if he is not joined, a cоmplete and efficient determination of the equities and rights and liabilities of the other parties is not possible. Grammer v. Roman, 174 So.2d 443 (Fla.App. 1965).
The appellant, hоwever, asserts that an insured is not an indispensable party and that a right of “direct action” exists solely against an insurer authorized to do businеss in Florida, citing Shingleton v. Bussey, 223 So.2d 713 (Fla. 1969) and Maxwell v. Southern American Fire Ins. Co., 235 So.2d 768 (Fla.App. 1970). We disagree for the reasons hereinafter stated.
The Florida Supreme Court in Shingleton v. Bussey, supra, and Beta Eta House Corp. v. Gregory, 237 So.2d 163 (Fla. 1970)3 determined that joinder of the insurer and his insured was proper under any type оf liability insurance policy. The court in affirming the decision of the first district in Beta Eta House Corp. v. Gregory, 230 So.2d 495 (Fla.App. 1970), impliedly approved the statement of the first district that the Bussey decisions and the Beta Eta decision
“were not intended to nor do they have the effeсt of changing the substantive law of this state. These decisions have merely created a procedural innovation which permits a direct action against a liability insurance carrier as a codefendant in a suit brought against its insured where no such action previously existed.” Beta Eta House Corp. v. Gregory, 230 So.2d at 499. (Emphasis ours.)
These decisions, then, are diametrically opposed to the position taken by the appellant on this appeal as they permit “direct action” only where the insurance company is a codefendant. The later casе of Stecher v. Pomeroy4 is concerned primarily with the severance aspect of the Beta Eta cases and does not shеd any light on the question presented here.
Appellant‘s position is somewhat supported by Maxwell v. Southern American Fire Ins. Co., supra. However, that case is factually
In the case sub judice recovery is being sought for аlleged negligence under the liability provisions of an insurance policy. Under these facts, our decision is controlled by the reasоning in Russell v. Orange County, 237 So.2d 192 (Fla.App. 1970), cert. denied 239 So.2d 825 (Fla. 1970). In Russell, the plaintiff attempted a direct action solely against the insurer6 under a liability policy for the negligence of the insured. The сourt determined this procedure to be impermissible as the liability of the insurer is dependent on the liability of its insured, and where the insured is not liable, the insurer could not be liable. While, admittedly, Russell is also factually dissimilar from the instant case because in Russell it was clear that the insured wаs not liable7 and here a possibility exists as to the liability of the insured, we feel that the correct result was reached.
We have also considered the case of Thompson v. Commеrcial Union Ins. Co., 250 So.2d 259 (Fla. 1971), in which a judgment creditor was permitted to maintain a direct action solely against the insurance company. In Thompson, howevеr, the complaint was based on the alleged fraud or bad faith of the insurer in the conduct or handling of the suit and the actions of the insured wеre not at issue. In the instant case, of course, the actions of the insured are uniquely in issue, and he is therefore an indispensable party as the plaintiff must prove that the insured was negligent in order to recover from the insurer under the liability insurance policy.
In conclusion we would note that this case is not of the Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966) variety,8 as thе plaintiff in this case did not attempt to obtain in rem jurisdiction over the insurer by attaching the debt and obligations of the insurer to the insured. Wherefore, we expressly render no decision on this point.
Accordingly, no error having been shown, the order of the trial court dismissing plaintiff‘s complaint with prejudice is affirmed.
Affirmed.
REED, C.J., and WALDEN, J., concur.