IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

SOUTHERN GROUP INDEMNITY, INC.,

as subrogee of Irina Renee Plonka,

Appellant,

vs. Appeal No. 01-5466-CI-88A

AUTO OWNERS INSURANCE COMPANY,

Appellee.

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Opinion filed ________________________

Appeal from final judgment

Pinellas County Court, Civil Division

The Honorable Karl B. Grube

J. Emory Wood, Esquire

5015 4th Street North, Suite A

St. Petersburg, FL 33703

Attorney for Appellant

Sarah Clark Holloway, Esquire

1133 16th Street North

St. Petersburg, FL 33705

Attorney for Appellee

ORDER AND OPINION

THIS CAUSE came before the Court on appeal, filed by the Appellant, Southern Group Indemnity, Inc., as subrogee of Irina Renee Plonka, (Southern Group) from the Order Granting Defendant’s Motion to Dismiss (Order), entered in favor of the Appellee, Auto Owners Insurance Company (Auto Owners). Upon review of the record and the briefs and being otherwise fully advised in the premises, the Order is affirmed.

On appeal, this Court must conduct a de novo review to determine from the four corners of the Complaint whether the Appellant properly asserted a cause of action for equitable subrogation. See Samuels v. King Motor Company of Fort Lauderdale, 782 So.2d 489, 494-495 (Fla. 4th DCA 2001). In reviewing the Complaint, the Court finds that Ms. Plonka was a named defendant in an earlier indemnification action brought by Auto Owners. In that case, the lower court entered Summary Final Judgment against Ms. Plonka, which was satisfied by her insurer, Southern Group. At the conclusion of the indemnification action, Ms. Plonka held no rights or priorities against Auto Owners for which Southern Group could acquire. Therefore, Southern Group cannot maintain an equitable subrogation cause of action against Auto Owners. See Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 646 (Fla. 1999)(explaining that if the subrogor has no rights or priorites against a specified third party, then the subrogee has nothing to inherit as against that third party); see also Holyoke Mutual Insurance Company in Salem v. Concrete Equipment, Inc., 394 So.2d 193, 197 (Fla. 3d DCA 1981)(finding that the subrogee inherits an impediment to the cause of action; e.g., where subrogor’s action was barred by res judicata, subrogee’s action was similarly barred)(citations omitted).

Furthermore, the record reflects that Southern Group, the real party in interest, defended Ms. Plonka, although somewhat belatedly,[1] and lost. See Springer v. West, 769 So.2d 1068, 1070 (Fla. 5th DCA 2000)(stating that it is the insurer whose money is at stake that is the real party in interest and who is defending in the name of its insured). Southern Group, on behalf of Ms. Plonka, did not file a motion for rehearing of the Summary Final Judgment nor appealed the lower court’s denial of Ms. Plonka’s Motion for Relief from Summary Final Judgment. Southern Group cannot now attempt to circumvent the finality of the previous indemnification action, even if that action was legally incorrect, by bringing an equitable subrogation claim against Auto Owners.[2] See Holm v. Demetree, 681 So.2d 868, 868-869 (Fla. 5th DCA 1996)(finding that the judgment under attack, although perhaps not legally correct, had passed into the unassailable realm of finality). Therefore, the lower court did not err is dismissing the Complaint.

It is therefore,

ORDERED AND ADJUDGED that the Order Granting Defendant’s Motion is Dismiss is affirmed.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ day of January 2002.

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NANCY MOATE LEY
Circuit Judge, Appellate Division

Copies Furnished To:

The Honorable Karl B. Grube

J. Emory Wood, Esquire

Sarah C. Holloway, Esquire

Staff Attorney

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[1] The record shows that Southern Group did not receive notice of the indemnity action (styled AUTO-OWNERS INSURANCE COMPANY, as subrogee of FRED B. SIEBER, and FRED B. SIEBER, individually, vs. RENE W. MEYER, d/b/a ACTION IMPORTS, and IRINA RENEE PLONKA, Case No. 98-007215-CO-054), until after the lower court had entered the Summary Final Judgment against Ms. Plonka. Nevertheless, Southern Group did not deny Ms. Plonka coverage and satisfied the judgment entered against her.

[2] The dismissed Complaint made the same argument as was asserted in Ms. Plonka’s Motion for Relief from Summary Final Judgment; that is, as a permissive driver of Mr. Sieber’s vehicle, Ms. Plonka was an additional insured under Mr. Sieber’s policy issued by Auto Owners, such that Auto Owners was not entitled to indemnity from Ms. Plonka.