Florida Employers Insurance Service Corp. v. Norco, Inc. , 723 So. 2d 875 ( 1998 )

PER CURIAM.

Florida Employers Insurance Service Corporation (FEISCO) appeals from a summary final judgment in favor of Norco, Inc. (Nor-co). We reverse.

FEISCO, as assignee of the claims of Shields Systems, Inc. (Shields), sued Norco in an action based on common law indemnity to recover sums paid on a worker’s compensation claim which FEISCO paid on behalf of its insured, J. Kinson Cook, Inc., a general contractor, because Shields System, Inc., the employer and subcontractor, failed to provide workers’ compensation insurance as required by a construction contract between Shields and J. Kinson Cook, Inc. The complaint alleged that Shields applied through Norco for coverage in February, 1992, and paid the requisite premium, which application and premium were submitted to National Council on Compensation Insurance, Inc. (NCCI), the proposed insurer. NCCI, while a party to the suit, is not a party to the judgment on appeal. The complaint further alleged that Norco and NCCI were negligent in failing to provide coverage. The injury for which compensation was paid occurred in late March, 1992.

In support of the motion for summary judgment, Norco alleged that Shields had been negligent by allowing its prior policy to lapse, thus precluding it from seeking common law indemnity. The circumstances surrounding the lapse of a prior policy of insurance are irrelevant to the claim asserted in the action before the trial court. The summary judgment was based on this irrelevant fact and is, therefore, Reversed.

BARFIELD, C.J., and DAVIS, J., concur. WOLF, J., dissents, with opinion.