Summary
holding that pretrial transfer of insurance fines to plaintiff's attorney to be held in escrow for the plaintiff was not a seizure by the court or in the custody of the court within the meaning of rule 1.420, so as to prevent the plaintiff from voluntarily dismissing the suit
Summary of this case from Falduto v. LewisOpinion
No. 88-1108.
December 22, 1988. Rehearing Denied January 24, 1989.
Appeal from the Circuit Court, Marion County, Carven D. Angel, J.
James L. Harrison, Jr. of Tromberg, Shore, Harrison Safer, Jacksonville, for appellant.
Ralph J. McMurphy of Green and Simmons, P.A., Ocala, for appellees.
The issue in this case is jurisdiction. The appellant, Cigna, a corporation d/b/a Insurance Company of North America, was a co-plaintiff with United Storage Systems, Inc. and Clausson Lexow, appellees herein, in an action against Adolf Construction Company, Inc. Prior to trial, Adolf's carrier, USF G, turned over its insurance limits of $100,000.00 to Cigna's attorney, who placed the money in an interest-bearing account. The day before trial, Cigna voluntarily dismissed its claim. Thereafter, the trial court entered an order directing Cigna to pay the $100,000.00 in settlement proceeds to United Storage and Lexow. At the time of the non-suit, there was no cross-claim or counterclaim pending against Cigna, and no property had been seized by the court and none was in the custody of the court at that time. See Fla.R.Civ.P. 1.420(a); Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla. 1978); Romar International, Inc. v. Jim Rathman Chevrolet/Cadillac, Inc., 420 So.2d 346 (Fla. 5th DCA 1982).
(a) Voluntary Dismissal.
By Parties.
By Order of Court; If Counterclaim.
The settlement proceeds at issue were in the exclusive possession and custody of Cigna at the time of dismissal. Whatever breach of faith or trust may have occurred between the parties, there were no legal obstacles under Rule 1.420(a) that prevented Cigna's voluntary dismissal. In point of fact, the issue of entitlement to the settlement proceeds as between the parties to this appeal apparently is pending in a federal court action at this time.
The order of the trial court in regard to payment of the $100,000.00 by Cigna must be, and is
QUASHED.
ORFINGER and COWART, JJ., concur.