ZENOBIA REVOREDO, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF GILBERTO E. REVOREDO, DECEASED, ETC., APPELLANT,
v.
SOUTH PACIFIC PROFESSIONAL INSURANCE, INC., A FLORIDA CORPORATION, APPELLEE
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The estate of a deceased person obtained a judgment against an insured after the insurer denied coverage, then assigned its rights against the insurer to pursue satisfaction. The estate sued the insurance agent, but the court held that because the estate agreed not to execute against the insured and limited its recovery to the insurer, any derivative claim against the agent was also barred.
The court affirmed the dismissal of the claim against South Pacific, holding that because the estate's action against South Pacific was derivative of Perez's claim, and because Perez no longer had a cause of action against South Pacific after agreeing that the estate would not execute the judgment against him and would look only to Guardian, the estate could not maintain a cause of action against South Pacific.
[1] A third-party beneficiary action against an insurance agent is derivative of the insured's claim against the agent.
[2] An agreement by a plaintiff not to execute a judgment against a defendant and to seek satisfaction only from an insurer extinguishes any claim the plaintiff may have had…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The estate's third-party beneficiary action against South Pacific was derivative of Perez's claim.”
Establishes that the estate's claim depends entirely on Perez's rights and is not independent.
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Join FLexlaw to unlock all legal intelligenceZenobia Revoredo, as personal representative of Gilberto E. Revoredo's estate, filed a wrongful death action against Tomas Perez. Perez's insurer, Gua…
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PER CURIAM.
Zenobia Revoredo, as Personal Representative of the Estate of Gilberto E. Revoredo [estate], filed a wrongful death action against Tomas Perez. Perez tendered his defense to his insurer, Guardian Property and Insurance Company [Guardian]; however, Guardian denied coverage. Thereafter, the estate and Perez entered into an agreement stipulating to the entry of a judgment in favor of the estate and against Perez. The agreement also stated that the estate would only pursue Guardian to obtain satisfaction of the judgment and assigned any rights that Perez had against Guardian to the estate. Thereafter, the estate brought an action against Guardian and the insurance agent, South Pacific Professional Insurance, Inc. [South Pacific].1 South Pacific moved to dismiss the claim against it arguing that the assignment barred the claim. The trial court dismissed the claim against South Pacific and this appeal follows.
We find that the trial court properly dismissed the cause of action against South Pacific. The estate’s third-party beneficiary action against South Pacific was derivative of Perez’s claim. Any claim which Perez may have had against South Pacific was extinguished when the estate agreed not to execute the judgment against Perez and to look only to Guardian for satisfaction of the judgment. Additionally, the only claim which was assigned to the estate was Perez’s claim against Guardian. Since Perez no longer has a cause of action against South Pacific, the estate cannot have a cause of action against South Pacific. See Fidelity and Casualty Co. of New York v. Cope, 462 So. 2d 459 (Fla.1985); Kelly v. Williams, 411 So. 2d 902 (Fla. 5th DCA), rev. denied, 419 So. 2d 1198 (Fla.1982).
Affirmed.
. The count against Guardian was for "Breach of contract — wrongful denial of coverage and failure to defend” and the count against South Pacific was for “Failure to procure proper insur-anee coverage.”
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Citator
Authorities Cited
- Fid. & Cas. Co. OF NEW York v. Cope, 462 So. 2d 459 (Fla. 1985)
- Ward W. Kelly v. Williams, 411 So. 2d 902 (Fla. 5th DCA 1982)