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IN THE CIRCUIT COURT OF THE NINE- ~
TEENTH JUDICIAL CIRCUIT OF FLORIDA~,
IN AND FOR ST. LUCIE COUNTY. i
Case No. 73-426 CA
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CHARTER OAK FIRE INSURI~NCE : ~ ' ~
~ COMPANY, . 1
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. Plaintiff, . ~
vs. ; '
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JOHN C. PADEN, d/b/a PADEN .
~ PLUMBING COMPANY, et al., . :
Defendants. . ~ ~
• PARTIAL SUMMARY JUDGMENT •
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~ This cause came on for hearing on the motion of the
~ Defendant, JONN F. NIXON, for partial summary judgment against the,
' ° Plaintiff, Charter Oak Fire Insurance Company. The Court has
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! ~ considered the pleadings, admissions and affidavit of John F. '
Nixon, including the contract documents. After considering the
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; ~ above and being otherwise advised, the Court finds that there is
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I no genuine issue of any material fact with respect to plaintiff's ;
I~ ~ claim against the Defendant, John F. Nixon, and that this defen-
i ~ dant is entitled to judgment as a matter of law upon the claim
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' alleged against him in the plaintiff's Amended Complaint.
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~ In this case the plaintiff-insurer can stand in no better ~
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stead than the insured-owner. Subrogation cannot vest any addi-
~ tional or greater rights in the plaintiff than would have been had:
~ by the insured-owner. The insured-owner clearly breached Section ~
~ 11.3.1 of the general conditions to the contract in failing to
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~ pur~hase and maintain fire insurance upon the subject property to
s cover the interest of the contractor. Had this contract provision
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€ been complied with by the owner, then this cause could never have `
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been brought as, under the law, no subrogation action can be
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3 brought by an insurer against its own insured. As the owner, due
~ to this material breach, would be estopped from bringing this
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act;on against the contractor, the plaintiff-insurer, standing in
~ no better relative position, is likewise estopped. Also, under
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Section 9.7.5 of the general conditions to the contract, final
payment to the contractor, which_was in fact made, acted as a
Smith. Heath 8 Smith, Attomeys At Law, P. O. Box 1030, Ve~o Beach. Florida 32960 !
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