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Filing # 127341045 E-Filed 05/22/2021 09:51:13 PM
1IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT
IN AND FOR WASHINGTON COUNTY, FLORIDA
SHANNON R. COLLINS, HOYT S.
McLENDON, PATRICK S. CHILDERS,
and STEVEN M. McLENDON,
Plaintiffs,
CASE NO. 18-CA-53
vs.
MICHAEL CHRISTOPHER MADER and
SHEILA CLOUD MADER, et al.,
Defendants.
ORDER DENYING PLAINTIFF’S MOTION TO ALTER, AMEND OR VACATE THE
COURT’S ORDER GRANTING DEFENDANTS’ AMENDED MOTION TO DISMISS
THIS MATTER came before the Court for hearing on Plaintiffs Motion To Alter,
Amend Or Vacate The Court's Order Granting Defendants’ Amended Motion To Dismiss on
May 20, 2021. Having considered the motion, the response from Defendants, arguments of
counsel, the court file and record, and being otherwise fully advised, the Court finds as
follows:
This case arises out of an automobile accident occurring in Washington County,
Florida, on December 24, 2016. Plaintiffs were riding in a vehicle that was struck by
Defendant, Michael Mader’s, vehicle. Plaintiffs filed suit seeking compensatory
damages based on negligence against Michael Mader and his mother, Sheila Mader. At
the time of the accident, Michael and Sheila Mader were insured under a policy with
State Farm.
Three of the Plaintiffs, Hoyt S. McLendon, Patrick S. Childers, and Steven M.
McLendon, have settled their claims against Defendants. They executed and filed
dismissals in the court file. Defendants made an offer to the last remaining Plaintiff,
Shannon Collins, to pay policy limits of $25,000 in exchange for a release of his claims.
Under section 627.727(6)(a), Florida Statutes, written notice must be provided to
an underinsured motorist carrier “[i]f an injured person or, in the case of death, the
personal representative agr | Jaim_with
and such settlement would not fully satisfy the claim for personal injuries or wrongful
death so as to create an underinsured motorist claim. . . .” (emphasis added). “The
Electronically Filed Washington County Case # 18000053CAAXMX 05/22/2021 08:51:13 PMunderinsured motorist insurer then has a period of 30 days after receipt thereof to
consider authorization of the settlement or retention of subrogation rights.” Id.
Under section 627.727(6)(b), “[iJf an underinsured motorist insurer chooses to
preserve its subrogation rights by refusing permission to settle, the underinsured
motorist insurer must, within 30 days after receipt of the notice of the proposed
settlement, pay to the injured party the amount of the written offer from the underinsured
motorist’s liability insurer.” (emphasis added); see also SUBROGATION, Black's Law
Dictionary (11th ed. 2019)(“The principle under which an insurer that has paid a loss
under an insurance policy is entitled to all the rights and remedies belonging to the
insured against a third party with respect to any loss covered by the policy.”).
Although Plaintiff now disputes his intention to settle with the liability insurer and
its insureds in this case, it is undisputed that he accepted payment of the liability
insurer's policy limits, $25,000, from his underinsured motorist carrier. That tender
would not have been made but-for the operation of this statute, and that operative
moment served to assign his claim to his underinsured motorist carrier under the statute
and in accordance with his carrier's right of subrogation. After accepting this tender,
Plaintiff then proceeded to resolve his claim with his underinsured motorist carrier and
the liability insurer repaid the underinsured carrier policy limits of $25,000.
Plaintiffs underinsured motorist carrier has stepped into the shoes of Plaintiff and
if it so chooses, may pursue Defendants. Aetna Cas. & Sur. Co. v. Huntington Nat.
Bank, 587 So. 2d 483, 485 (Fla. 4th DCA 1991), approved, 609 So. 2d 1315 (Fla. 1992)
(“As the UM carrier of the victim suing under subrogation, Aetna stands in the shoes of
its insured.”). However, this claim no longer belongs to Plaintiff. Metro. Cas. Ins. Co. v.
Tepper, 2 So. 3d 209, 216 (Fla. 2009). Plaintiff by his actions chose his legal recourse
and cannot revive this case. Ignorance of the law is not a legal defense.
Therefore, it is hereby ORDERED AND ADJUDGED that Plaintiff's Motion To Alter,
Amend Or Vacate The Court’s Order Granting Defendants’ Amended Motion To Dismiss is
DENIED.
DONE AND ORDERED this Saturday, May 22, 2021 in Washington County, Florida.Copies to:
RICHARD E CRUM
rcrum@crumandharmon.com
csizemore@crumandharmon.com
wfeltman@crumandharmon.com
PATRICK S CHILDERS
C/O SHEALY, CRUM & PIKE, LLC
POST OFFICE BOX 6346
DOTHAN, AL 36302-6346
Julia MADDALENA
jmaddalena@handfirm.com
viseminger@handfirm.com
emartin@handfirm.com
William Q. Platt IV
wplatt@handfirm.com
viseminger@handfirm.com
cmartin@handfirm.com
Timothy Register, Judge
67-2018-CA-000053-CAAM 05/22/2021 08:50:37 PM
HOYT S MCLENDON
C/O SHEALY, CRUM & PIKE, LLC
POST OFFICE BOX 6346
DOTHAN, AL 36302-6346
STEVEN M MCLENDON
C/O SHEALY, CRUM & PIKE, LLC
POST OFFICE BOX 6346
DOTHAN, AL 36302-6346
Charles Andrew Weddle
aweddle@handfirm.com
cmartin@handfirm.com
mclark@handfirm.com
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Filing # 127341045 E-Filed 05/22/2021 09:51:13 PM 1IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT IN AND FOR WASHINGTON COUNTY, FLORIDA SHANNON R. COLLINS, HOYT S. McLENDON, PATRICK S. CHILDERS, and STEVEN M. McLENDON, Plaintiffs, CASE NO. 18-CA-53 vs. MICHAEL CHRISTOPHER MADER and SHEILA CLOUD MADER, et al., Defendants. ORDER DENYING PLAINTIFF’S MOTION TO ALTER, AMEND OR VACATE THE COURT’S ORDER GRANTING DEFENDANTS’ AMENDED MOTION TO DISMISS THIS MATTER came before the Court for hearing on Plaintiffs Motion To Alter, Amend Or Vacate The Court's Order Granting Defendants’ Amended Motion To Dismiss on May 20, 2021. Having considered the motion, the response from Defendants, arguments of counsel, the court file and record, and being otherwise fully advised, the Court finds as follows: This case arises out of an automobile accident occurring in Washington County, Florida, on December 24, 2016. Plaintiffs were riding in a vehicle that was struck by Defendant, Michael Mader’s, vehicle. Plaintiffs filed suit seeking compensatory damages based on negligence against Michael Mader and his mother, Sheila Mader. At the time of the accident, Michael and Sheila Mader were insured under a policy with State Farm. Three of the Plaintiffs, Hoyt S. McLendon, Patrick S. Childers, and Steven M. McLendon, have settled their claims against Defendants. They executed and filed dismissals in the court file. Defendants made an offer to the last remaining Plaintiff, Shannon Collins, to pay policy limits of $25,000 in exchange for a release of his claims. Under section 627.727(6)(a), Florida Statutes, written notice must be provided to an underinsured motorist carrier “[i]f an injured person or, in the case of death, the personal representative agr | Jaim_with and such settlement would not fully satisfy the claim for personal injuries or wrongful death so as to create an underinsured motorist claim. . . .” (emphasis added). “The Electronically Filed Washington County Case # 18000053CAAXMX 05/22/2021 08:51:13 PMunderinsured motorist insurer then has a period of 30 days after receipt thereof to consider authorization of the settlement or retention of subrogation rights.” Id. Under section 627.727(6)(b), “[iJf an underinsured motorist insurer chooses to preserve its subrogation rights by refusing permission to settle, the underinsured motorist insurer must, within 30 days after receipt of the notice of the proposed settlement, pay to the injured party the amount of the written offer from the underinsured motorist’s liability insurer.” (emphasis added); see also SUBROGATION, Black's Law Dictionary (11th ed. 2019)(“The principle under which an insurer that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy.”). Although Plaintiff now disputes his intention to settle with the liability insurer and its insureds in this case, it is undisputed that he accepted payment of the liability insurer's policy limits, $25,000, from his underinsured motorist carrier. That tender would not have been made but-for the operation of this statute, and that operative moment served to assign his claim to his underinsured motorist carrier under the statute and in accordance with his carrier's right of subrogation. After accepting this tender, Plaintiff then proceeded to resolve his claim with his underinsured motorist carrier and the liability insurer repaid the underinsured carrier policy limits of $25,000. Plaintiffs underinsured motorist carrier has stepped into the shoes of Plaintiff and if it so chooses, may pursue Defendants. Aetna Cas. & Sur. Co. v. Huntington Nat. Bank, 587 So. 2d 483, 485 (Fla. 4th DCA 1991), approved, 609 So. 2d 1315 (Fla. 1992) (“As the UM carrier of the victim suing under subrogation, Aetna stands in the shoes of its insured.”). However, this claim no longer belongs to Plaintiff. Metro. Cas. Ins. Co. v. Tepper, 2 So. 3d 209, 216 (Fla. 2009). Plaintiff by his actions chose his legal recourse and cannot revive this case. Ignorance of the law is not a legal defense. Therefore, it is hereby ORDERED AND ADJUDGED that Plaintiff's Motion To Alter, Amend Or Vacate The Court’s Order Granting Defendants’ Amended Motion To Dismiss is DENIED. DONE AND ORDERED this Saturday, May 22, 2021 in Washington County, Florida.Copies to: RICHARD E CRUM rcrum@crumandharmon.com csizemore@crumandharmon.com wfeltman@crumandharmon.com PATRICK S CHILDERS C/O SHEALY, CRUM & PIKE, LLC POST OFFICE BOX 6346 DOTHAN, AL 36302-6346 Julia MADDALENA jmaddalena@handfirm.com viseminger@handfirm.com emartin@handfirm.com William Q. Platt IV wplatt@handfirm.com viseminger@handfirm.com cmartin@handfirm.com Timothy Register, Judge 67-2018-CA-000053-CAAM 05/22/2021 08:50:37 PM HOYT S MCLENDON C/O SHEALY, CRUM & PIKE, LLC POST OFFICE BOX 6346 DOTHAN, AL 36302-6346 STEVEN M MCLENDON C/O SHEALY, CRUM & PIKE, LLC POST OFFICE BOX 6346 DOTHAN, AL 36302-6346 Charles Andrew Weddle aweddle@handfirm.com cmartin@handfirm.com mclark@handfirm.com