Caplan v. Johnson

PER CURIAM:

Appellees, George Caplan, Solomon Caplan and Albert Caplan, brought this action against Lloyds, London, appellant, in order to garnish the proceeds of a False Arrest Liability Insurance Policy issued by Lloyds. The debt upon which the garnishment is based arose by virtue of a judgment for $15,000 compensatory damages1 against the insureds

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of Lloyds in a prior civil action brought by appellees in federal court, pursuant to 42 U.S.C. §§ 1983 and 1985, for deprivation of civil rights by a deliberate scheme of false arrests and prosecutions under color of state law.2

In the present case the District Court granted appellees’ motion for summary judgment, and this appeal followed.3

Appellant contends that the Trial Court erroneously granted summary judgment herein, because judgment in the original proceeding was improvidently awarded. Appellant alleges, inter alia, thíft a prior state court judgment rejecting appellees’ demands was res judicata of the civil rights action in federal court, and that the insureds did not commit any acts of false arrest, false imprisonment, or malicious prosecution. However, appellant may not collaterally attack appellees’ judgment in the present case:

“Where there has been a valid final judgment against the insured, establishing his liability to one injured or damaged by his conduct, the insurer usually must accept such judgment as conclusively establishing that liability. Ordinarily, therefore, the insurer is bound by all facts and matters necessarily adjudicated in the original action * * *.

“Even though the insurer may have disclaimed liability and refused to defend the principal suit, the same rule applies, and the insurer is foreclosed from again adjudicating the matters determined in such action.” [Citing, inter alia, Columbia Casualty Co. v. Hare, 116 Fla. 29, 156 So. 370 (1934)]

20 Appleman, Insurance Law and Practice ¶ 11521, pp. 375-376, 378 (1963). See also Maryland Casualty Company v. Mitchell, 5 Cir., 1963, 322 F.2d 37, 39; Aetna Casualty and Surety Company v. Hase, 8 Cir., 1968, 390 F.2d 151, 152; Stephenson v. Duriron Company, S.D. Ohio, 1968, 292 F.Supp. 66. See generally 1B Moore, Federal Practice ¶ 0.405 [9] (2 ed. 1965).

The principal issue in this suit, therefore, is whether the cause of action upon which appellees obtained judgment against the insureds is within the coverage of the liability insurance policy issued by appellant.4 Maryland Casualty Company v. Mitchell, supra. See Bettinger v. Northwestern Nat. Cas. Co., 8 Cir., 1954, 213 F.2d 200, 205-206. We hold that the judgment secured against the insureds under 42 U.S.C. §§ 1983 and 1985 is covered by the policy, and hence that appellant is liable for the amount of the judgment. Cf. Whirl v. Kern, 5 Cir., 1969, 407 F.2d 781.

In relevant part, the False Arrest Liability Policy issued by Lloyds herein states that

“ * * * ' this insurance covers the Assured against loss by reason of liability imposed by law upon the Assured, by reason of any false arrest, assault and battery (as herein defined), false imprisonment or malicious prosecution * *

The liability which was imposed on the insureds arose by reason of a series

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of false arrests. The Supreme Court has held that the Civil Rights Act must be interpreted (where applicable) in the light of common law tort liability. Pierson v. Ray, 386 U.S. 547, 556-557, 87 S.Ct. 1213, 1218-1219, 18 L.Ed.2d 288 (1967); Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961). We find no basis in the unqualified language of the policy for the contention that coverage was limited to common law rather than statutory liability. If such a purpose were intended, the policy provisions could have made that intention explicit.

We have considered appellant’s other contentions and find them to be without merit.5 There was no error in the allowance of appellees’ attorney fees. Fla.Stat. § 627.0127(1), F.S.A.; Johnson v. Atlantic National Insurance Company, 163 So.2d 340 (Fla.D.Ct. of App. 1964); James Furniture Mfg. Co., Inc. v. Maryland Cas. Co., 114 So.2d 722 (Fla. D.Ct. of App.1959).

Affirmed.

Punitive damages were also awarded, but Florida law does not permit the recovery of such damages from an insurer. Northwestern National Casualty Company v. McNulty, 5 Cir., 1962, 307 F.2d 432. This issue is not raised on appeal.

The prior suit was filed by George Caplan, Solomon Caplan and Albert Cap-lan in the United States District Court for the Southern District of Florida and resulted in a judgment against Clint Johnson, Hazel B. Johnson and James Rossi, Mayor, Town Clerk and member of the Police Department, respectively, of the Town of Medley, Florida. An appeal from this judgment to this Court was dismissed on March 7, 1968, the appeal having been abandoned.

Pursuant to new Rule 18 of the Rules of this Court, we have concluded on . the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir., 1969, 409 F.2d 804.

We note parenthetically that appellant stipulated below that the only issues for review were the coverage of the False Arrest Policy and the award of appellees’ attorney fees.

There is no merit to the contention that the insureds who were held jointly liable with a non-insured are not liable for the full amount of the compensatory damages. It is well settled that damages should not be apportioned between joint tort-feasors, and that each defendant is liable for the full amount of the award. See, e. g., Kellenberger v. Widener, 159 So.2d 267, 268 (Fla.D.Ct. of App.1964).