We always knew the insurance company was the client.

FLORIDA LAW WEEKLY

VOLUME 46, NUMBER 22

CASES FROM THE WEEK June 4, 2021

INSURANCE COMPANIES HAVE STANDING TO BRING LEGAL MALPRACTICE CASES AGAINST COUNSEL THEY HIRE TO REPRESENT THEIR INSUREDS

Arch Ins. Co. v. Kubicki Draper, LLP, 46 Fla. L. Weekly S155 (Fla. June 3, 2021):

An insurance company brought this legal malpractice action against the law firm it retained to represent its insured.

The underlying lawsuit gave rise to the insurance company’s duty to defend any claim made against the insured. The policy required permission from the insurance company to retain counsel and contained a subrogation provision, stating that to the extent the insurance company paid under the policy, the insurance company would be subrogated to the insured’s right to recovery.

In accordance with the policy, the insurance company retained Kubicki Draper to defend its insured. The underlying matter was settled by Kubicki within the insured’s policy limits of $3.5 million.

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The insurance company subsequently sued Kubicki, primarily based on the firm’s failure to raise a statute of limitations defense, which significantly increased the cost of settlement. Kubicki successfully moved for summary judgment, arguing that an insurance company lacks standing to sue a law firm it retains because there is no privity of contract or attorney/client relationship.

The insurance company countered that there was either privity between it and the firm, or alternatively that it was a third-party beneficiary, and that the policy provided subrogation rights. The trial court granted the summary judgment, which the Fourth District affirmed.

The Supreme Court reversed. It concluded that while the law firm was not in privity with the insurer, the policy’s subrogation provision did confer standing on the insurer to maintain a legal malpractice action against counsel hired to represent it's insured (because the insurer was contractually subrogated to the insured’s rights under the policy). Subrogation affords relief when one is required to pay a legal obligation which ought to be met either wholly or partially by another.

Because the language of the subrogation provision was clear, contractually subrogating the insurance company to the rights of the insured, that subrogation provision would allow a claim for legal malpractice against counsel retained to defend the insured.

Thus, the court concluded that an insurer has standing to maintain a legal malpractice action against counsel hired to represent its insured, as long as the insurer is contractually subrogated to the insured’s rights under the policy.

LEGAL MALPRACTICE CASE TIMELY

Vega v. Rier, 46 Fla. L. Weekly D1233 (Fla. 3rd DCA May 26, 2021):

The defendant's attorney represented the plaintiff through both a trial and appeal of a criminal case. After the decision was entered by the court in favor of the State, the defense attorney filed a motion for written opinion or certification, and motion for rehearing en banc. On March 24, 2017, the court entered a final order denying all post-decision motions. Plaintiff filed a Writ of Certiorari with the Florida Supreme Court, which the court denied on October 2, 2017.

The statute of limitations in a legal malpractice case begins to run from the rendition of the final order on appeal and ends two years later. If the losing party appeals a District Court’s decision to the Florida Supreme Court, for the purposes of determining when the limitations period begins to run, a final judgment is not final until a timely filed appeal or petition for review is resolved by the Florida Supreme Court.

The plaintiff filed his legal malpractice action against the attorney on April 2, 2018, which was well within the two-year range of the statute of limitations calculated from either the Court’s March 24, 2017 order or from the Supreme Court’s October 2, 2017 order of denial of certiorari. Therefore, it was an error for the court to dismiss the legal malpractice action.

SUMMARY JUDGMENT PROPERLY ENTERED FOR EMPLOYER WHEN ITS EMPLOYEE INJURED PLAINTIFF ON HIS WAY TO WORK WHILE WORKING OUT-OF-STATE – IT IS WELL ESTABLISHED THAT AN EMPLOYEE DRIVING “TO AND FROM WORK” IS NOT WITHIN THE COURSE AND SCOPE OF EMPLOYMENT AND THAT RULE DOES NOT CHANGE MERELY BECAUSE THE EMPLOYEE IS TEMPORARILY WORKING OUT-OF-STATE

Peterson v. Cisco Systems Inc., 46 Fla. L. Weekly D1248 (Fla. 2nd DCA May 28, 2021):

The defendant driver was an engineer working for the defendant in Virginia. The defendant sent him to work temporarily on-site for a Tampa-based customer, and for the duration of his stay, he was living in a hotel and the defendant was paying for his rental car. The accident happened when the defendant driver was driving the rental car to the worksite from the hotel.

The defendant's employer moved for summary judgment asserting that a person driving to or from work is not within the course and scope of his employment, and therefore the employer could not be responsible for his actions. The plaintiff countered that because the driver was on an out-of-state business trip, the case was different.

It is well established in Florida that an employee driving to and from work is not within the scope of employment as the defendant asserted, and an accident happening during one of those times, does not impose liability on the employer. Conduct is within the scope of the employment if it occurs substantially within authorized time and space limits, and is activated, at least in part, by a purpose to serve the master.

An employee whose work entails travel away from the employer’s premises is within the course of his employment at all times during the trip, other than when there is a distinct departure for a non-essential personal errand for workers’ compensation purposes. The plaintiff’s reliance on the “traveling employee” rule was misplaced in this third party case, however, and it is distinct from the “going and coming” rule applied in negligence cases involving third parties.

The court rejected the plaintiff’s argument about the driver being away from home. The court admonished that the plaintiff’s expansive view of respondeat superior would then subject the defendant to liability for any tortious conduct committed by its employee during his entire trip, which is not supported by the case law.

The plaintiff also raised for the first time on appeal that the defendant owned the rental vehicle. The court said the record reflected scant facts to support that “remarkable proposition.” It also noted that the plaintiff’s failure to present the argument to the trial court waived the issue because a summary judgment hearing presents a sufficient opportunity for the parties to preserve an issue and objections for appeal.