
    Linda WILLIAMS, Individually and as Assignee of Elbert L. Williams, Appellant, v. AUTO OWNERS INSURANCE COMPANY, Appellee.
    No. 2D99-4344.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 2001.
    
      Douglas L. Grose of Douglas L. Grose, P.A., Tampa, and Daniel F. Daly, Tampa, for Appellant.
    Christine C. Daly of Bradley Johnson Law Firm, P.A., Lake Wales, and Hank Campbell of Lane, Trohn, Bertrand & Vreeland, P.A., Lakeland, for Appellee.
   WHATLEY, Judge.

Linda Williams appeals a final judgment entered in favor of Auto Owners Insurance Company in her action to recover proceeds under an insurance policy. We reverse.

The facts leading up to Williams’s action against Auto Owners are as follows. On February 7, 1991, a fire occurred on commercial property located at 1006 U.S. Highway 92 West in Auburndale, Florida (the Auburndale property) that was owned by Linda Williams and her husband Elbert. The Auburndale property was insured under a policy issued by Auto Owners to Elbert Williams and Florida Central Auto Brokers, Inc., a Florida corporation closely held by Linda and Elbert. On December 16, 1992, Elbert was convicted pursuant to a jury verdict in federal court of trafficking in cocaine. The jury also found by special verdict that the Auburn-dale property was subject to forfeiture. On March 29, 1993, the federal court entered a preliminary order of forfeiture as to the property. On April 20, 1993, the United States sent notice of the forfeiture action to, among others, Linda Williams, as a third party asserting a legal interest in the Auburndale property. On April 29, 1993, Elbert assigned to Linda “all legal and/or equitable rights, title and interests in such property and cause(s) of action(s) which may arise with respect to property located at 1006 Highway 92 West, Auburn-dale, Florida....” On May 21, 1993, Linda filed a petition for return of the property. On July 30, 1993, the federal court entered a final order of forfeiture. Thereafter, Williams and the United States entered into a stipulated agreement to split the proceeds from the sale of the property equally.

In her fourth amended complaint against Auto Owners, Williams alleged actions for a declaratory judgment and for breach of contract based upon Auto Owners’ failure to pay her claim for proceeds for fire damage to the Auburndale property under the insurance policy covering that property. Williams brought suit on behalf of Florida Central Auto Brokers and herself, as assignee of Elbert’s interests in the property and the insurance proceeds. The declaratory judgment count was dismissed with prejudice pursuant to a motion by Auto Owners. Auto Owners then filed a motion for summary judgment asserting that, because of the forfeiture, there is no issue of material fact but that Elbert Williams and his assignee have no legal interest, and therefore no insurable interest, in the Auburndale property. Auto Owners has more specifically argued in this appeal that the relation-back provision of the forfeiture statute served to divest Elbert, and therefore his assignee, of any' interest in the Auburndale property as of the date of his trafficking offense, which was set forth in the indictment as occurring from an unknown date in 1983 through on or about December 6, 1991. The trial court granted Auto Owners’ motion and, pursuant to the order granting that motion, it ultimately entered a final judgment for Auto Owners. That final judgment was entered in error.

The one case that addresses the issue presented in this ease, Counihan v. Allstate Insurance Co., 25 F.3d 109 (2d Cir.1994) (Counihan II), holds contrary to Auto Owners’ position. Auto Owners urges this court to adopt the ease reversed in Counihan II, Counihan v. Allstate Insurance Co., 827 F.Supp. 132 (E.D.N.Y.1993) (Counihan I), but this we decline to do. We find no significance in the fact that Counihan II involved the civil forfeiture statute and the present case involves the criminal forfeiture statute. The relation-back provisions of the two forfeiture statutes are identical. 21 U.S.C. § 853(c) (criminal); 21 U.S.C. § 881(h) (civil).

In Counihan II, arson destroyed property in which Counihan had an insurable interest prior to the entry of a judgment of forfeiture that was based on her son’s drug dealing on the property and her alleged knowledge thereof. Allstate denied Couni-han’s claim for proceeds under the insurance policy she had on the property, and she filed an action to recover those proceeds. The federal district court granted Allstate’s motion to dismiss on the ground that Counihan did not have an insurable interest in the property because of the relation-back provision of the federal civil forfeiture statute. 21 U.S.C. § 881(h) (“All right, title, and interest in property described in subsection (a) of this section shall vest in the United States upon commission of the act giving rise to forfeiture under this section.”).

Counihan appealed to the Second Circuit, which reversed based on the following well-reasoned analysis that is equally applicable to the facts of the present case:

Where the district court differed with the plaintiff, and where we differ with the district court, is in the applicability of the “relation-back” provision of the forfeiture statute. We do not think that this provision serves retroactively to divest an insurable interest that once is established.
It is manifest that the statutoiy provision cannot serve to transfer ownership of the property until there is a final judgment of forfeiture. In United States v. 92 Buena Vista Ave.[, 507 U.S. 111, 128-29, 113 S.Ct. 1126, 1137, 122 L.Ed.2d 469 (1993)], the government argued that an individual was not entitled to raise the “innocent owner” defense in a forfeiture proceeding because she had purchased the property with proceeds of an illegal narcotics transaction and section 881(h) vested ownership of the property in the government at the moment the alleged proceeds were used to pay the purchase price. The Supreme Court rejected this argument, equating the common-law rule of relation-back to its statutory equivalent:
The common-law rule had always allowed owners to invoke defenses made available to them before the Government’s title vested....
The foregoing compels the conclusion that not every right of the owner is lost by virtue of the relation-back of title. Among the rights that survive are rights under a fire insurance policy, which, as previously noted, “are fixed both as to amount and standing to recover at the time of the fire loss.” Here, the government did not win a final judgment of forfeiture until long after the loss by fire of the property in which plaintiff clearly had an insurable interest. By the time that judgment was entered, the right of plaintiff to assert a claim under her insurance policy had become fixed. Simply put, the government could not contend that it owned the property until a judgment of forfeiture was entered. By then, Allstate’s obligation to pay had become fixed under plaintiffs policy and that obligation could not be discharged by the operation of the legal fiction known as relation-back.

25 F.3d 109,112-113 (citations omitted).

Based on Counihan II, we reverse the final judgment entered in favor of Auto Owners because the relation-back provision of the forfeiture statute did not retroactively divest Williams, via the assignment from Elbert, of her insurable interest in the Auburndale property. We do not direct entry of a judgment in favor of Williams, however, because Auto Owners has raised other defenses that have not been addressed in the trial court.

Reversed and remanded for further proceedings not inconsistent with this opinion.

BLUE, A.C.J., concurs.

DAVIS, J., Dissents with opinion.

DAVIS, Judge,

Dissenting.

I respectfully dissent. The majority opinion relies on the authority of Counihan v. Allstate Insurance Co., 25 F.3d 109 (2d Cir.1994). I find that case to be distinguishable from the case before this court.

The majority acknowledges that Couni-han interprets the relation-back provision of the federal civil forfeiture statute and that this case is dealing with the criminal forfeiture statute. However, the majority concludes that since the relation-back provisions of the two statutes are identical, the same reasoning should apply in both types of proceedings. I disagree.

In Counihan, the plaintiff was the owner of the home and was the insured party under the insurance contract. The owner’s son was convicted of dealing in drugs in the home, which led to the forfeiture proceeding. Subsequent to the son’s arrest but prior to entry of the final judgement of forfeiture, the home was destroyed by fire. When the owner made her claim for payment on the insurance policy, Allstate argued that she did not have an insurable interest because the relation-back provision of the forfeiture statute vested ownership of the property in the government as of the date of the son’s drug offense, i.e., before the fire occurred. The court rejected that argument and found that under the federal civil forfeiture statute, the relation-back provision would not divest an owner of her insurable interest.

However, the facts of this case are significantly different. While in Counihan the civil forfeiture proceeding was used to take property from a non-criminal owner without meeting the normal due process requirements, in this case, it is the criminal’s interest that is being divested. The relation-back provision in the criminal forfeiture proceeding is more than just a “significant weapon in the government’s arsenal for the war on narcotics.” Counihan, 25 F.3d at 113. Rather, it is intended to be a sanction against the criminal himself and is considered to be a part of the sentencing. See U.S. v. Ben-Hur, 20 F.3d 313, 317 (7th Cir.1994). Accordingly, even if Counihan is correct in determining that the relation-back provision does not divest a non-criminal owner of an insurable interest in a civil forfeiture proceeding, I would conclude that the due process reasoning inherent in Counihan does not apply to a criminal proceeding where the forfeiture serves a punitive purpose. For this reason, I would conclude that the criminal forfeiture provision does divest a criminal owner of rights in and to the subject property.

In this case, the appellant, as the assign-ee, has no more rights than the assignor held at the time of the assignment. See Alderman Interior Sys., Inc. v. First National-Heller Factors, Inc., 376 So.2d 22, 24 (Fla. 2d DCA 1979). Since I would conclude that the relation-back provision divested the husband/assignor of all his rights to the property, including the insurable interest, as of the date of the criminal offense, I would likewise conclude that the assignment was a nullity and the trial court’s summary judgment should be affirmed. 
      
      . The Second Circuit went on to address the district court’s concerns that allowing insurance proceeds to be obtained on forfeited property would give drug traffickers an incentive to commit arson to avoid the effect of the forfeiture statutes. The Second Circuit pointed out that one who commits arson is not entitled to recover fire insurance proceeds. If arson is not detected, the court set forth several courses of action the government may take. 25F.3datll3.
      We note that the government is not a party to the present appeal nor has it asserted any claim to the fire insurance proceeds.
     