Great American Insurance Companies v. Gordon Trucking, Inc.
Filed July 29, 2008, Fifth District
Cite as 2008 SOS 4619

Equitable Subrogation Inapplicable

When Gordon’s Truck would not start, Art’s Towing towed it to the repair yard of Bonander Truck, Inc. The truck was parked next to two other trucks.

Due to a fire, all three trucks were damaged. Great American Insurance Companies, the insurer for one of the other two trucks, sued Gordon, claiming that Gordon’s truck started the fire.

Gordon moved for summary judgment alleging that it did not breach any duty it owed to the owner of the damaged truck. It also claimed that there was no causal connection between the maintenance of its truck and the fire.

In support of its motion, it offered the responses of Great American’s insureds, the Gandys, to interrogatories propounded by Gordon. Great American objected but the same was overruled.

The trial court granted summary judgment for Gordon. The court found that there was no triable issue of material fact concerning Gordon’s breach of a duty of care to Great American or causation of damage.

On appeal, the court of appeal reversed said decision holding that the trial court erred in overruling Great American’s objection to the Gandys’ interrogatory responses.

Gandy’s response to interrogatories was not binding against its insurer where the insurer, and not the insured, was the plaintiff in litigation against the third party.

Another party cannot use insured’s answer to demonstrate that insurer has no facts with which to prove allegations.

Hence, the trial court’s reliance on the doctrine of equitable subrogation was an error.