MILTON OGUR AND COLONIAL PENN INSURANCE COMPANY, APPELLANTS,
v.
MOLLIE MOGEL ET AL., APPELLEES
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Milton Ogur and Colonial Penn Insurance Company appealed an interlocutory order determining the sequence in which multiple insurance policies would apply to cover a potential judgment in a pedestrian injury lawsuit. The Third District Court of Appeal dismissed the appeal, holding that the order did not satisfy the jurisdictional requirements for interlocutory appeal because it did not determine a 'issue of liability' in favor of a party seeking affirmative relief.
The court held that the trial court's order is not appealable because: (1) it did not determine an 'issue of liability' since the liability of the defendants was necessarily inchoate prior to a judgment in favor of Mogel; and (2) it was not a ruling on motions seeking 'affirmative relief,' as the order merely addressed future indemnity rights among the defendants rather than independent claims.
[1] An interlocutory appeal under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) is permissible only from non-final orders that determine the issue of liability in fa…
[2] A trial court order determining the future indemnity rights of defendants and the sequence of their responsibility for payment does not determine an "issue of liability"…
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Join FLexlaw to unlock all legal intelligence“Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), the purported authority for this appeal, gives us jurisdiction of an interlocutory appeal only from non-final orders which determine "the issue of liability in favor of a party seeking affirmative relief"”
Establishes the jurisdictional standard that limits when interlocutory appeals are permitted
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Join FLexlaw to unlock all legal intelligenceMollie Mogel, a pedestrian, was injured in a collision between a rental vehicle and another car. She sued the operator, lessee, and owner of the renta…
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DANIEL S. PEARSON, Judge.
Mollie Mogel, a pedestrian injured when a rental vehicle and another car collided, sued, inter alia, the operator, lessee and owner of the rental vehicle, and their respective insurers. These defendants filed cross-claims for indemnity against one another and, thereafter, cross-motions for summary judgment seeking, inter alia, a determination of the order in which the insurance coverage would be applied were Mogel ultimately to prevail in her suit. The trial court entered a Summary Judgment Regarding Insurance Coverage, finding that the insurers of the operator, lessee and owner, would, successively, be liable to the extent of their respective policy limits.1
Ogur and Colonial Penn Insurance Company (the lessee and his insurer) took this interlocutory appeal, which the operator, the owner and their insurers have moved to dismiss.
We dismiss the appeal upon a holding that (1) Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), the purported authority for this appeal, gives us jurisdiction of an interlocutory appeal only from non-final orders which determine “the issue of liability in favor of a party seeking affirmative relief”; (2) the trial court’s order, setting forth the future indemnity rights of the defendants and the sequence in which the defendants would be responsible to pay any judgment in favor of Mogel, (a) did not determine an “issue of liability,” since the liability of any of these defendants was necessarily inchoate prior to such a judgment, cf. American Heritage Institutional Securities, Inc. v. Price, 379 So. 2d 420 (Fla. 5th DCA 1980) [holding that a determination by the trial court that a suit can appropriately be brought as a class action merely “allows the cause to proceed towards a potential liability as yet undetermined” and is not an appealable non-final order under Florida Rule of Appellate Procedure 9.130(-a)(3)(C)(iv)], and (b) was not a ruling on motions which sought “affirmative relief,” see Rhein v. Rhein, 244 Minn. 260, 69 N.W. 2d 657 (1955) (“affirmative relief” is that for which defendant might maintain an action entirely independent of plaintiff’s claim and which he might proceed to establish and recover even if plaintiff abandoned his cause of action or failed to establish it); Simpson v. Superior Court In and For Los Angeles County, 68 Cal.App.2d 821, 158 P. 2d 46 (Cal.App.2d Dist. 1945) (affirmative relief does not include mere defensive matter, but means the allegation of new matter which amounts to a counterattack); compare York Insurance Company v. Becker, 364 So. 2d 858 (Fla. 2d DCA 1978); (3) the result is unaffected by cases decided under former Florida Appellate Rule 4.2a (1962), which authorized an interlocutory appeal from a partial summary judgment on the issue of liability without regard to whether the issue was decided “in favor of a party seeking affirmative relief,” see, e. g., Jerome Naglebusch, Inc. v. Frank J. Rooney, Inc., 342 So. 2d 121 (Fla. 3d DCA 1977).
Appeal dismissed.
. Liberty Mutual Insurance Company, which insured the operator, was to be primarily liable to the extent of its coverage of $50,000; Colonial Penn Insurance Company, which insured the lessee, was to be secondarily liable to the extent of its coverage of $100,000; American Southern Insurance Company and Alliance Insurance Company, which insured the owner rental car agency, were to provide the third and fourth layers of coverage to the extent of $50,-000 and $450,000, respectively.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Travelers Ins. Co. v. Bruns, 443 So. 2d 959 (Fla. 1984)…thus, was nonappealable under rule 9.130. In so holding, the district court aligned itself with the first and third district courts of appeal decisions in U.S. Fidelity and Guaranty Co. v. Sloan, 410 So. 2d 549 (Fla. 1st DCA 1982) and Ogur v. Mogel, 390 So. 2d 105 (Fla. 3d DCA 1980). The district court recognized and certified express conflict with Summers and Garner. For the reasons below, we approve the district court decision and disapprove Summers and Garner. Rule 4.2, Interlocutory Appeals, the 1962 pre…
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P & H Vehicle Rental & Leasing Corp. v. Garner, 416 So. 2d 503 (Fla. 5th DCA 1982)…ind that we do have jurisdiction to consider the appeal of the portion of the summary judgment determining which of the two contesting carriers has primary coverage. We recognize that this holding appears to be in conflict [*505] with Ogur v. Mogel, 390 So. 2d 105 (Fla. 3d DCA 1980). The trial court found that Pennsylvania had primary coverage as the lessor’s insurer because the rental agreement did not properly shift that burden to the lessee under section 627.7263, Florida Statutes (1981). That statute pro…
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BE & K, Inc. v. Seminole Kraft Corp. & Robert & Effie Bricker, 583 So. 2d 361 (Fla. 1st DCA 1991)…affirmative relief” within the meaning of rule 9.130(a)(3)(C)(iv). Seminole Kraft relies on Travelers Insurance Co. v. Bruns, 443 So. 2d 959 (Fla.1984), US. Fidelity and Guarantee Co. v. Sloan, 410 So. 2d 549 (Fla. 1st DCA 1982), and Ogur v. Mogel, 390 So. 2d 105 (Fla. 3d DCA 1980). Seminole Kraft further argues that review by certiorari is not appropriate because BE & K has failed to demonstrate that the trial court’s order “constitutes a departure from the essential requirements of law and that BE & K does…1 / 2
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jerome Nagelbush, Inc. v. Frank J. Rooney, Inc., 342 So. 2d 121 (Fla. 3d DCA 1977)
- York Ins. Co. v. Becker, 364 So. 2d 858 (Fla. 2d DCA 1978)
- T & T Trucking Co. & Ins. Co. of N. Am. v. McWILLIAMS, 379 So. 2d 420 (Fla. 1st DCA 1980)