CopyCited 15 times | Published | Florida 5th District Court of Appeal | 1991 Fla. App. LEXIS 6175, 1991 WL 117041
...The court did not expressly classify an "excess case" as either tort or contract. [1] Vanguard Ins. Co. v. Townsend,
544 So.2d 1153 (Fla. 5th DCA 1989). [2] §
86.101 Fla. Stat. (1989). [3] See, e.g., Clemmons v. American States Ins. Co.,
412 So.2d 906 (Fla. 5th DCA 1982). [4] § 627.7262, Fla. Stat. (1989). [5] §
46.051(3), Fla....
CopyPublished | District Court of Appeal of Florida | 10 Fla. L. Weekly 2009
SHARP, Judge. The constitutionality of section 46.051, Florida Statutes (1983), is at issue in this case. The statute provides, in relevant part, “No products liability insurer shall be joined as a party defendant in an action to determine the insured’s liability.” 1 Pursu *414 ant to section 46.051, the trial court struck as a party defendant in this case the insurer of one of the defendants, Lodal, Inc. Because we find section 46.051 is unconstitutional as violative of Article II, section 3 of the Florida Constitution, 2 the striking of the insurer was erroneous, and therefore we reverse for a new trial....
...(the truck’s manufacturer), and Centaur Insurance Company (Lodal’s insurer). Over the plaintiff’s constitutional challenge of the statute, the trial court granted Centaur’s motion to strike. The case proceeded to jury trial without Centaur and resulted in a verdict absolving Lodal of any negligence. 3 Section 46.051 is the third of a trilogy of nonjoinder statutes....
...ve date of October 1, 1982. VanBibber v. Hartford Accident and Indemnity Insurance Co.; Beaupre v. Testa,
449 So.2d 311 (Fla.2d DCA), rev. denied,
456 So.2d 1182 (Fla.1984); Salyer v. Gainesville Dodge, Inc.,
448 So.2d 1190 (Fla. 1st DCA 1984). *415 Section
46.051 is indistinguishable from the nonjoinder statutes found constitutionally defective in Markert v. Johnston and Cozine v. Tullo. It too merely dictates the procedure for joining parties. It does not create or condition the arising of a cause of action against a products liability insurer. Thus, section
46.051 is unconstitutional and the trial court erred in relying upon it to dismiss the liability insurer....
...The Fourth District reversed for a new trial stating, “It was appellant’s right to join the insurer as a party and we do not know how one would articulate prejudice under the circumstances of this case.”
458 So.2d at 863 . Accordingly, we hold that section
46.051, Florida Statutes (1983) is unconstitutional as an infringement upon the court’s rule-making authority....
...Therefore, the trial court erred by striking Lodal Inc.’s insurer as a party defendant. We remand for a new trial with Centaur Insurance Company joined as a party defendant. REVERSED AND REMANDED FOR NEW TRIAL. DAUKSCH, J., and BOARDMAN, E.F., Associate Judge, concur. . In its entirety, section 46.051, Florida Statutes (1983) provides: Joinder of products liability insurers....
