Florida’s Nonjoinder Statute Not Designed to Allow You to Put the Cart Before the Horse

As a third party claimant, you cannot sue a wrongdoer-insured’s insurance carrier until you get a judgment against the insured. I have posted numerous posting regarding Florida’s nonjoinder statute and the fact that you cannot sue an insurer unless (i) you are an insured or (ii) you get a judgment against the wrongdoer-insured.

While there have been creative arguments to circumvent the nonjoinder statute, they are rarely successful because the law is not designed to put the cart before the horse, i.e., to allow a claimant to sue the insurer before it establishes liability and damages against the insured.

In a more recent example, International Special Events and Recreation Association, Inc., v. Bellina, 42 Fla. L. Weekly D968c (Fla. 5th DCA 2017), a third party claimant sued the negligent party’s insurer for coverage. The insurers, not surprisingly, moved to dismiss the lawsuit raising the argument that the lawsuit was prematurely filed before the third party got a judgment against the insured as mandated by Florida’s nonjoinder statute: Florida Statute s. 627.4136.   The trial court agreed with the insurer, however, instead of dismissing the case, it stayed the case. The insurer appealed and the Fifth District agreed with the insurer and remanded the case back to the trial court to dismiss the prematurely filed action.

As you know from prior postings, insurance coverage is important.  Maximizing insurance coverage is of the utmost importance.  With that being said, as a a third party claimant, steps need to be followed before you can sue another’s insurer for coverages and insurance proceeds.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.


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