LIBERTY MUTUAL INSURANCE COMPANY, APPELLANT,
v.
LONE STAR INDUSTRIES, INC., APPELLEE
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[*1123] ON MOTION TO DISMISS
PER CURIAM.
An order resolving a coverage issue between insured and insurer is not appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) because such an issue does not resolve liability in favor of a party seeking affirmative relief and because the purpose of the rule is to restrict interlocutory appeals in order to curb piecemeal litigation. Travelers Ins. Co. v. Bruns, 443 So. 2d 959 (Fla.1984); see also Logozzo v. Kent Ins. Co., 464 So. 2d 605 (Fla. 3d DCA 1985). Furthermore, “the theory underlying the more restrictive rule is that appellate review of non-final judgments serves to waste court resources and needlessly delays final judgment.” Bruns, 443 So. 2d at 961.
Motion to dismiss granted.
NESBITT and BASKIN, JJ., concur.
COPE, Judge
(dissenting).
I respectfully dissent.
The proceeding below is a declaratory judgment action in which Lone Star Industries, Inc. brought suit against its insurer, Liberty Mutual Insurance Company, requesting a determination in count I, that Liberty Mutual was obliged to defend Lone Star in separately pending environmental litigation, and in count II, that Liberty Mutual is obliged to indemnify Lone Star for any judgment that may be rendered. The trial court entered an order granting partial summary judgment as to the duty to defend, thus granting most, if not all, of the relief sought by Lone Star in count I.
Liberty Mutual has appealed and Lone Star has moved to dismiss the appeal. In my view, the motion is not well-founded.
First, it is true that the order under review is an order granting a motion for partial summary judgment and has not been reduced to the form of a “partial summary judgment.” Because Rule 9.130(a)(3)(C)(iv) expressly permits review of “nonfinal orders of lower tribunals” (emphasis added) which otherwise meet the criteria specified in the rule, the order is reviewable whether or not it takes the form of a “judgment.” In that respect I agree with the dissent in Bravo Electric Co. v. Carter Electric Co., 522 So. 2d 480, 481 (Fla. 5th DCA 1988), see generally H. Trawick, Trawick’s Florida Practice & Procedure § 25-8, at 358 (1988), and would adopt that analysis. The decisions in Logozzo v. Kent Insurance Co., 464 So. 2d 605 (Fla. 3d DCA 1985), and Kessler v. Gumenick, 358 So. 2d 1167 (Fla. 3d DCA 1978), relied on by the majority, do not address the specific issue under review here.
In the present case, unlike Travelers Insurance Co. v. Bruns, 443 So. 2d 959 (Fla.1983), the action is a first-party action by an insured against its own insurance company. The affirmative relief specifically requested by the insured is that the insurance company defend the insured, and that “issue of liability” has been determined in favor of the “party seeking affirmative relief.” Fla.R.App.P. 9.130(a)(3)(C)(iv). By contrast, Bruns was a direct action against the insurer by the injured party, not an action by the insured, and the issue was the existence of coverage, not the duty to defend. See Western American Ins. Co. v. Nixon, 489 So. 2d 876, 877 (Fla. 4th DCA 1986). In my view the appealability of the trial court order in the present case follows from Ogur v. Mogel, 390 So. 2d 105, 106 (Fla. 3d DCA 1980) (approved by implication in Bruns, 443 So. 2d at 960). I would therefore deny the motion to dismiss.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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United States Fid. & Guar. Co. v. Safe Harbor Enters., Inc., 634 So. 2d 169 (Fla. 3d DCA 1991)…motion to consolidate case no. 91-1435 and 91-1436 is denied as moot. Ap-pellee’s motion to dismiss appeal is granted and this appeal from the Circuit Court for Monroe County, Florida, is hereby dismissed. See Liberty Mutual v. Lone Star Industries, 556 So. 2d 1122 (Fla. 3rd DCA 1989). NESBITT, JORGENSON and GODERICH, JJ., concur.…
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Interamerican CAR Rental, Inc. v. O'Brien, 618 So. 2d 760 (Fla. 3d DCA 1993)…determine the issue of liability in favor of a party seeking affirmative relief and, thus, was not appealable under rule 9.130[, Florida Rules of Appellate Procedure].” Id. at 960; see also Liberty Mutual Insurance Co. v. Lone Star Industries, Inc., 556 So. 2d 1122 (Fla. 3d DCA 1990); Ogur v. Mogel, 390 So. 2d 105 (Fla. 3d DCA 1980). Since there is no reviewable order under Rule 9.130, and since no final judgment has been entered disposing of plaintiff’s claims against Interamerican, there is no appeal-able or…
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Miami-Dade Cnty. v. Aviation Off. OF Am., 826 So. 2d 1009 (Fla. 3d DCA 2001)…deny specific performance of the duty of the insurer to defend ongoing litigation, but I see no such claim in this case. I concur that dismissal is in order. . This court dismissed such an appeal in Liberty Mut. Ins. Co. v. Lone Star Indus., Inc., 556 So. 2d 1122 (Fla. 3d DCA 1989). The trial court had ruled that the insurer had a duty to defend. The insurer appealed, arguing that the order finding that the insurer had a duty to defend amounted to an order determining the issue of liability in favor of a par…1 / 2
Authorities Cited
- Travelers Ins. Co. v. Bruns, 443 So. 2d 959 (Fla. 1984)
- Ogur v. Mollie Mogel, 390 So. 2d 105 (Fla. 3d DCA 1980)
- Rocco Logozzo, II v. Kent Ins. Co., 464 So. 2d 605 (Fla. 3d DCA 1985)
- Bravo Elec. Co., Inc. v. Carter Elec. Co., 522 So. 2d 480 (Fla. 5th DCA 1988)
- Kessler v. Gumenick, 358 So. 2d 1167 (Fla. 3d DCA 1978)
- W. Am. Ins. Co. v. Luann Nixon, 489 So. 2d 876 (Fla. 4th DCA 1986)
- Sims Crane Serv., Inc. v. Am-Cal Constr. Co., 358 So. 2d 1167 (Fla. 1st DCA 1978)