Maryland Casualty Company vs. North Pointe Insurance Company, et al.

Filing 11

ORDER denying 7 Defendant's Motion to Dismiss Counts I and II of Complaint. Signed by Judge James S. Moody, Jr on 10/20/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

MARYLAND CASUALTY COMPANY,
Plaintiff,
v.

Case No: 8:14-cv-1893-T-30MAP

NORTH POINTE INSURANCE
COMPANY and CLARENDON
AMERICA INSURANCE COMPANY,
Defendants.

ORDER
THIS CAUSE comes before the Court upon the Defendant's Motion to Dismiss
Counts I and II of Complaint (Dkt. #7) and Plaintiff's Response in Opposition to the Motion
(Dkt. #10). Upon review and consideration, it is the Court’s conclusion that the Motion
should be denied.
Plaintiff filed a complaint against Defendants alleging contribution and equitable
subrogation regarding an underlying construction defect lawsuit in state court. Defendants
are primary insurers for Empire Finish Systems, Inc., who is a defendant in the underlying
lawsuit. The complaint alleges that the Defendants erroneously declined or withdrew from
the defense of Empire Finish Systems, Inc. in the underlying lawsuit and failed to
contribute to the settlement despite their contractual obligations to do so. Therefore

Plaintiff seeks Defendants’ pro rata share of defense costs and indemnity payments it
incurred on behalf of Empire Finish Systems, Inc.
Defendants’ Motion to Dismiss argues that the Court should dismiss Counts I and
II of the Complaint because Plaintiff alleged a claim for “common law contribution” which
does not exist in Florida. Under Florida law, contribution is a purely statutory remedy.
Zurich Am. Ins. Co. v. Hi-Mar Specialty Chemicals, LLC, 08-80255-CIV, 2009 WL
1851124 (S.D. Fla. 2009) (citing Horowitz v. Laske, 855 So. 2d 169, 173 (Fla. 5th DCA
2003)).
Although Plaintiff uses the term “common law contribution,” the Complaint clearly
alleges that Plaintiff seeks contribution pursuant to Section 768.31, Florida Statutes. The
Uniform Contribution Among Tortfeasors Act specifically provides that “a right to
contribution exists only in favor of a tortfeasor who has paid more than her or his pro rata
share of the common liability.” Fla. Stat. § 768.31. It further states that a “liability insurer
who by payment has discharged in full or in part the liability of a tortfeasor and has thereby
discharged in full its obligation as insurer is subrogated to the tortfeasor’s right of
contribution to the extent of the amount it has paid in excess of the tortfeasor’s pro rata
share of the common liability.” Id. Plaintiff has sufficiently alleged its claim for statutory
contribution. Defendants’ Motion to Dismiss is without merit.
It is therefore ORDERED AND ADJUDGED that Defendant's Motion to Dismiss
Counts I and II of Complaint (Dkt. #7) is DENIED.

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DONE and ORDERED in Tampa, Florida, this 20th day of October, 2014.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2014\14-cv-1893- mtd 7.docx

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