Case No. 4D02-3857.
Opinion filed September 24, 2003.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Robert A. Hawley, Judge; L.T. Case No. 01-347 CA03.
Eric G. Belsky of Johnson, Leiter Belsky, Fort Lauderdale and Eric H. Luckman of Eric H. Luckman, P.A., Boynton Beach, for appellant.
Ellen C. Pappas and Ronald A. Mowrey of Mowrey Biggins, P.A., Tallahassee, for appellee.
We reverse the order dismissing this action seeking a declaration of coverage under an insurance policy. The court made a decision on the merits that there was no coverage under the policy. This was error. "A motion to dismiss a complaint for declaratory judgment is not a motion on the merits. Rather, it is a motion only to determine whether the plaintiff is entitled to a declaration of its rights, not to whether it is entitled to a declaration in its favor." Laganella v. Boca Grove Golf Tennis Club, Inc., 690 So.2d 705, 706 (Fla. 4th DCA 1997) (quoting Royal Selections, Inc. v. Fla. Dep't of Revenue, 687 So.2d 893 (Fla. 4th DCA 1997)).
Appellee relied heavily on Mason v. Florida Sheriffs' Self-Insurance Fund, 699 So.2d 268 (Fla. 5th DCA 1997), which construed the same policy language under very similar circumstances. However, Mason was not a declaratory judgment case and therefore is not applicable to this procedural matter, although it is relevant authority on the merits.
Reversed and remanded for further proceedings.
WARNER, MAY, JJ., and ARAMONY, SUSAN, Associate Judge, concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.