The case below, Hartford Accident Indemnity Co. v. U.S. Concrete Pipe Co., 369 So.2d 451 (Fla. 4th DCA 1979), held that the instructions given to the jury allowed a finding of active negligence on the part of the corporate employer, thereby imposing punitive damages against the employer and relieving its insurer from liability for the punitive damages. Pursuant to Article V, Section 3(b)(3), Florida Constitution (1972), we accepted jurisdiction of the case on grounds of conflict with Travelers Insurance Co. v. Wilson, 261 So.2d 545 (Fla.4th DCA 1972). The facts of the case are set out in previous decisions of this Court and the Fourth District Court of Appeal. Petitioner U.S. Concrete Pipe Co. was insured by respondent Hartford Accident Indemnity Co. An automobile accident caused by the negligence of one of petitioner's employee-drivers resulted in two deaths.
It is well settled in Florida that one may not insure against liability for punitive damages as the result of his own misconduct which gave rise to such damages. Nicholson v. American Fire Casualty Ins. Co., 177 So.2d 52 (Fla. 2d DCA 1965); Northwestern National Casualty Co. v. McNulty, 307 F.2d 432 (5th Cir. 1962); Commercial Union Ins. Co. of New York v. Reichard, 404 F.2d 868 (5th Cir. 1968); Travelers Ins. Co. v. Wilson, 261 So.2d 545 (Fla. 4th DCA 1972). These decisions are grounded upon public policy which, in effect, states that punitive damages are imposed against a defendant as punishment to the defendant and as a deterrent to the defendant and others.
Florida's intermediate appellate courts, however, have permitted insurance coverage of punitive damages where the insured party was not itself at fault but was merely vicariously liable for punitive damages based on the reckless conduct of another. See Hartford Accident Indemnity Co. v. U.S. Concrete Pipe Co., 369 So.2d 451, 452-53 (Fla.Dist.Ct.App. 1979) (respondeat superior); Travelers Insurance Co. v. Wilson, 261 So.2d 545 (Fla.Dist.Ct.App. 1972); Sterling Insurance Co. v. Hughes, 187 So.2d 898 (Fla.Dist.Ct.App.) (respondeat superior), cert. denied, 194 So.2d 622 (Fla. 1966). Honda's post-trial argument contended: any recklessness proved by the plaintiff was that of Honda RD, the wholly owned subsidiary, rather than of Honda Motor, the defendant; punitive damages were therefore awarded against Honda Motor on a theory of vicarious liability; insurance coverage was therefore permissible.
In the former case, it would contravene public policy to allow the corporation to shift to an insurer the deterrent award imposed on account of the corporation's own wrongful acts; in the latter case, it would not be inconsistent with public policy to allow the corporation to shift to an insurer the punitive damage award when that award is placed upon the corporation solely as a matter of vicarious liability. The distinction is not a novel one: it has been fully considered and adopted by the courts of Florida. Travelers Ins. Co. v. Wilson, 261 So.2d 545 (Fla.App. 1972); Sterling Ins. Co. v. Hughes, 187 So.2d 898 (Fla.App. 1966); see also Commercial Union Ins. Co. v. Reichard, 404 F.2d 868 (5th Cir. 1968) (applying Florida law). The Florida rule was developed in part from the concept that a corporation is itself capable of willful and malicious misconduct, independent of the misconduct of its agents and employees.
Obviously, the courts have not found public policy to be violated where one liable for punitive damages solely because of vicarious liability has shifted that burden to an insurance carrier. Travelers Insurance Co. v. Wilson, 261 So.2d 545, 549 (4th Dist.Fla.1972). With these considerations in mind, and being cognizant of the position of the Sheriff as it relates to his alleged vicarious liability in this cause, the Court is of the opinion that the motion to dismiss on this ground must be denied.
This rule was interpreted to permit appeals from partial summary judgments on the issue of insurance coverage. Auto Owners Insurance Co. v. West, 260 So.2d 534 (Fla. 3d DCA 1972), reversed on other grounds, 276 So.2d 31 (Fla. 1973); Travelers Insurance Co. v. Wilson, 261 So.2d 545 (Fla. 4th DCA 1972). Petitioner concedes that the wording of the present rule differs from its predecessor, but asserts that we should adopt Summers and Garner and permit continued review of such orders, because this would vindicate the intent of the framers of the present rule.
In Florida, public policy prohibits liability insurance coverage for punitive damages assessed against a person because of his wrongful conduct. Travelers Insurance Co. v. Wilson, 261 So.2d 545 (Fla. 4th DCA 1972). See Commercial Union Insurance Co. v. Reichard, 404 F.2d 868 (5th Cir. 1968).
Obviously, or so Florida reasons, if the liability insurer, rather than the tortfeasor himself, were to pay the punitive damages award, the wrongdoer would not suffer the economic detriment which it is the very purpose of punitive damages to impose. See McNulty, 307 F.2d at 435; Commercial Union Ins. Co. v. Reichard, 404 F.2d 868 (5th Cir. 1968); Travelers Ins. Co. v. Wilson, 261 So.2d 545 (Fla. 4th DCA 1972); Nicholson, 177 So.2d at 53; Perez v. Otero, 415 So.2d 101 (Fla. 3d DCA 1982); Florida Patient's Compensation Fund v. Mercy Hospital, Inc., 419 So.2d 348 (Fla. 3d DCA 1982); see generally Comment, Punitive Damages Insurance: Why Some Courts Take the Smart out of "Smart Money," 40 U.Miami L.Rev. 979 (1986). But this principle has no application whatever to uninsured motorist coverage.
. . . Before an employer may be held vicariously liable for punitive damages under the doctrine of respondeat superior, there must be some fault on his part. . . . 393 So.2d at 549. Relying on the above language from Mercury Motors as a first premise, appellee applies, as a second premise, the established rule that public policy will not permit one to insure himself against his own misconduct, Hartford Accident Indemnity Company v. U.S. Concrete Pipe Company, 369 So.2d at 452; Travelers Insurance Co. v. Wilson, 261 So.2d 545, 549 (Fla. 4th DCA 1972) and reasons that Mercury Motors has effectively abolished the vicarious liability exception to the rule which insulates insurers from any obligation to pay punitive damages. The conclusion does not necessarily follow.
SCHWARTZ, Judge. On the authority of Sterling Ins. Co. v. Hughes, 187 So.2d 898 (Fla. 3d DCA 1966), cert. denied, 194 So.2d 622 (Fla. 1966) and Travelers Ins. Co. v. Wilson, 261 So.2d 545 (Fla. 4th DCA 1972), we affirm the conclusion that Wackenhut's liability carrier is liable for the punitive damages recovered in Canty v. Wackenhut Corp., 311 So.2d 808 (Fla. 3d DCA 1975), cert. discharged, 359 So.2d 430 (Fla. 1978). See also, Duke v. Hoch, 468 F.2d 973 (5th Cir. 1972); Morrison v. Hugger, 369 So.2d 614 (Fla. 2d DCA 1979).