Summary
In Liberty Mutual Insurance Co. v. Lone Star Industries, Inc., 556 So.2d 1122 (Fla. 3d DCA 1989), the trial court determined that the insurer had a duty to defend and the insurer sought to appeal that order.
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No. 89-1278.
October 3, 1989. Rehearing Denied March 13, 1990.
Appeal from the Circuit Court, Dade County, Leonard Rivkind, J.
Gaston Snow and Lee H. Glickenhaus, Akerman, Senterfitt Eidson and William E. Sadowski and G. Alan Howard, Miami, for appellant.
Keith, Mack, Lewis, Allison Cohen and R. Hugh Lumpkin, Miami, for appellee.
Before NESBITT, BASKIN and COPE, JJ.
ON MOTION TO DISMISS
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.
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.