WILLIE MACK PERRY, PETITIONER,
v.
FIREMAN'S FUND INSURANCE COMPANY AND DAVID USSERY, RESPONDENTS
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Perry appealed a trial court order that suspended his negligence action against an insured motorist (Ussery) and his liability insurer (Fireman's Fund) pending service of process on the insured. The court treated the order as a nonappealable interlocutory stay rather than an abatement, and denied certiorari review while clarifying that discovery could proceed during the stay.
The court treated the order as a nonappealable interlocutory stay rather than an abatement, and denied the petition for certiorari. However, the stay should not preclude appropriate discovery, such as interrogatories to respondent regarding the insured's whereabouts.
[1] An order postponing proceedings until service of process can be effected on a party is treated as a stay, not an abatement.
[2] A stay of proceedings is a nonappealable interlocutory order.
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Join FLexlaw to unlock all legal intelligence“Although the order labeled the postponement as an "abatement", we treat it as a stay of the proceedings in light of respondent's request and the intent of the order.”
The court's determination that the trial court's order was a stay rather than an abatement, which affects appealability
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Join FLexlaw to unlock all legal intelligencePerry filed a negligence complaint against Ussery for negligent operation of a motor vehicle on May 9, 1978, joining Ussery's liability insurer Firema…
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OTT, Judge.
Willie Mack Perry, plaintiff below, appeals the amended order of the trial court which abated his action against Fireman’s Fund and its insured, David Ussery. For the following reasons we treat the order of the trial court as a stay of the proceedings and the appeal as a petition for certiorari to review a nonappealable interlocutory order. Petitioner filed a complaint against David Ussery on May 9, 1978, alleging negligent operation of a motor vehicle. Respondent, Ussery’s liability carrier, was joined as a defendant. As of October 30, 1978, however, service of process had not been effected upon Ussery.1 Respondent filed a motion to abate or quash the action, contending that its liability could not be determined without the presence of its insured. The trial court denied the motion, but respondent was granted a continuance until such time as service of process could be effected upon defendant Ussery.
Thereafter, respondent submitted a motion to amend the order, maintaining that the proper remedy for failure to join an indispensable party was dismissal of the complaint. However, respondent stated in the motion, as it does here, that dismissal was not sought; rather, it requested an abatement of the action until service of process could be effected. It was contended that to allow the action to proceed without proper joinder would “prejudice [the respondent] in such proceedings as depositions and other discovery.” The trial judge subsequently entered the amended order abating the action “until proper service has been obtained upon the defendant, David Ussery.”
It would seem there is some merit to respondent’s contention that the insured is an indispensable party to the action. See Kephart v. Pickens, 271 So. 2d 163 (Fla. 4th DCA 1972), and Fla.R.Civ.P. 1.140(b). See also, Beta Eta House Corp. v. Gregory, 230 So. 2d 495 (Fla. 1st DCA 1970), and Shingleton v. Bussey, 223 So. 2d 713 (Fla.1969).
Although the order labeled the postponement as an “abatement”, we treat it as a stay of the proceedings in light of respondent’s request2 and the intent of the order. Traditionally, abatement terminated common law actions and necessitated bringing the action anew if and when it became proper to do so. Equitable actions were merely suspended until such time as the disability was removed. Under modern rules a stay simply postpones the action until the happening of some contingency. See generally, 1 Fla.Jur.2d, Actions §§ 37, 63.
A stay is a nonappealable interlocutory order. Fla.R.App.P. 9.130(a). Thus, we treat this appeal as a petition for certiorari under Florida Rules of Appellate Procedure 9.030(b)(2)(A). Departure from the essential requirements of law and prejudice have not been made to appear. Therefore, we deny the petition for certiorari. The “abatement” should not preclude appropriate interrogatories to respondent, or other permissible discovery, as to the whereabouts of respondent’s insured, David Us-sery.
GRIMES, C. J., and BOARDMAN, J., concur. . Why Ussery has not been served is not revealed by the record or the briefs of the parties.
. Respondent stated in its motion to amend the trial court’s order continuing the action that it believed “that plaintiff should be given additional opportunity to effect proper service of process upon the insured and therefor [sic] calls for abatement of this action rather than dismissal of the complaint.”
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Dep't OF Child. & Families v. L.D. and J.S., 840 So. 2d 432 (Fla. 5th DCA 2003)…ngency occurs. See Williams v. Edwards, 604 So. 2d 930 (Fla. 5th DCA 1992). The difference between the two types of orders is important because an order staying a proceeding is not an appealable non-final order. See Perry v. Fireman’s Fund Ins. Co., 379 So. 2d 429 (Fla. 2d DCA 1980) (citing Fla. R.App. P. 9.130(a)). Although we are not certain whether the language “abated entering judgment” is simply phraseology couched in the idiom of the trial judge or a misnomer, we believe that the trial judge actually in…
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Williams v. Hon. William F. Edwards, 604 So. 2d 930 (Fla. 5th DCA 1992)…terminated common law actions and necessitated bringing the action anew if and when it became proper to do so ... Under modern rules a stay simply postpones the action until the happening of some contingency.” Perry v. Fireman's Fund Insurance Co., 379 So. 2d 429, 430 (Fla. 2d DCA 1980). Abatement is appropriate where two actions are pending simultaneously which involve the same parties and the same or substantially the same causes of action. Lightsey v. Williams, 526 So. 2d 764, 765 (Fla. 5th DCA 1988). Whe…
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Carrow v. THE Florida BAR, 848 So. 2d 1283 (Fla. 2d DCA 2003)…peals an order imposing a stay of discovery until such time as he files a legally sufficient complaint. An order on a motion imposing a [*1285] stay of discovery is reviewable by petition for writ of certiorari. See Perry v. Fireman’s Fund Ins. Co., 379 So. 2d 429, 430 (Fla. 2d DCA 1980). Accordingly, we treat this portion of the appeal as a petition for writ of certiorari. In order to prevail when seeking review of an interlocutory order by common law certiorari, the petitioner must establish that (1) the t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Shingleton v. Bussey, 223 So. 2d 713 (Fla. 1969)
- Gulf Stream Motors, Inc. v. Christina Cook & the Fla. Indus. Comm'n, 223 So. 2d 713 (Fla. 1969)
- Beta ETA House Corp. v. Gregory, 230 So. 2d 495 (Fla. 1st DCA 1970)
- Augusta Kephart v. Pickens, 271 So. 2d 163 (Fla. 4th DCA 1972)