Subrogation, Equitable


[1] Elements and Case Citations

(1)   Plaintiff is subrogated to the rights of the injured party (the “subrogee”); 

(2)   The subrogee made the payment to protect his or her own interest,

(3)   The subrogee did not act as a volunteer,

(4)   The subrogee was not primarily liable for the debt,

(5)   The subrogee paid off the entire debt,

(6)   Subrogation would not work any injustice to the rights of a third party, and

(7)   As a result, the subrogee (party discharging the debt) stands in the shoes of the person whose claims have been discharged and thus succeeds to the right and priorities of the original creditor.

 

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Florida State Courts 

Supreme Court: Dade County School Board v. Radio Station WQBA, 731 So. 2d 638, 646 (Fla. 1999)

Second District: Welch v. Complete Care Corp., 818 So.2d 645, 648 (Fla. 2^nd DCA 2002)

Fourth District: Hollywood Lakes Country Club, Inc. v. Community Ass’n Serv., Inc., 770 So. 2d 716, 718 (Fla. 4^th DCA 2000)

Fifth District: Florida Farm Bureau General Ins. Co. v. Ins. Co. of North America, 763 So. 2d 429, 436 n. 4 (Fla. 5^th DCA 2000)

 

Florida Federal Courts 

Eleventh Circuit:      In re Celotex Corp., 472 F.3d 1318, 1323 (11^th Cir. 2006)

Middle District:  In re Celotex Corporation v. Allstate Insurance Company, 289 B.R. 460, 467 (M.D. Fla. 2003).

 

[2]  Defenses to Claim for Subrogation

 

(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See § 60. 

(2) Statute of Limitations: § 95.11(3)(p), Fla. Stat. (four years). 

(3) “[A] settlement executed by the insured cannot act as a bar to an action for subrogation by the insurer against a third-party tortfeasor if, prior to the settlement, the tortfeasor learns of the insurer's perfected subrogation rights.” E.g., Lincoln Nat. Health and Cas. v. Mitsubishi, 778 So. 2d 392, 395 (Fla. 5^th DCA 2001).

(4) “Subrogation in equity is not available to a mere volunteer or stranger who, without any duty or obligation to intervene and without being so requested, pays the debt of another.”  Dade County School Board v. Radio Station WQBA, 731 So. 2d 638, 646 (Fla. 1999).

(5) If the plaintiff/subrogor has no rights against the third party, the subrogee has no rights against such party. Welch v. Complete Care Corp., 818 So.2d 645, 648 (Fla. 2^nd DCA 2002).

(6)  Plaintiff does not allege that it is subrogated to the rights of the injured party.  Florida Farm Bureau General Ins. Co. v. Ins. Co. of North America, 763 So. 2d 429, 436 (Fla. 5^th DCA 2000).