Kooiker v. American Bankers Insurance

PER CURIAM. In a prior lawsuit appellant sued an automobile dealer who had sold him a stolen car, as well as dealer’s surety company, American Bankers. At the trial of that case, the court directed a verdict in favor of American Bankers on the ground that appellant could have no cause of action against the surety, American Bankers, until he had obtained a judgment against the principal covered by the surety bond. After obtaining a judgment, appellant brought this suit against American Bankers, and the trial court entered a summary judgment for American Bankers based on res judicata. We reverse, because, the cause of action i not having accrued to appellant at the time the directed verdict was entered, the dismissal of American Bankers from that lawsuit was not on the merits. Hett v. Madison Mut. Ins. Co., 621 So.2d 764 (Fla. 2d DCA 1993). The summary judgment is accordingly reversed. DELL, GUNTHER and KLEIN, JJ., concur.