Saturday, September 10, 2011

Subrogation Is Not Available To An Amount Greater Than Paid By Insurer

In McCabe v. Florida Power and Light Company (4D10-1306), the "Plaintiff  received the policy limits  from his  homeowner’s insurer and FIGA for his  losses, as well as an additional $15,000 from FPL,  totaling $296,900. He never signed a full  release  in  favor of his insurance company, FIGA, or FPL for  the loss. In this action, Plaintiff sought over $600,000 in itemized damages, executed an affidavit, and gave a deposition with regard thereto."

The court stated that "the  insurer’s and FIGA’s satisfaction and releases do not bind Plaintiff even if FPL may be entitled to a collateral source set-off at some future point in the proceedings. An insurer and  successor in interest may subrogate to the rights of its insured but subrogation 'is not available to an extent greater than the amount paid by the insurer, and then only after the insured has been fully indemnified'.”

Ultimately, the court held that:
(1)  the circuit  court erred in granting final summary judgment, as  the amount of damages is a fact still in dispute; and (2) the insurer’s and FIGA’s (the Florida Insurance Guaranty Association) satisfaction and releases do not bind Plaintiff even if FPL may be entitled  to a collateral source set-off at some  future point in the proceedings.


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