ALAMO RENT-A-CAR, INC., AND AMERICAN SOUTHERN INSURANCE COMPANY, APPELLANTS,
v.
THOMAS F. SUMMERS ET AL., APPELLEES
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Alamo Rent-A-Car and its insurer appealed a summary judgment order determining that Alamo's carrier had primary insurance coverage in a personal injury case. The court held that orders determining insurance coverage liability between codefendants are appealable nonfinal orders under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), rejecting the reasoning in Ogur v. Mogel.
The court held that an order determining liability coverage in favor of a codefendant is a proper subject for appeal under rule 9.130(a)(3)(C)(iv). Orders determining insurance coverage constitute determinations of 'liability' and when entered on a codefendant's motion, they represent affirmative relief obtained by that codefendant.
[1] An order determining insurance coverage between codefendants is an appealable nonfinal order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) when it is enter…
[2] A determination of insurance coverage between codefendants can constitute affirmative relief for the purpose of appealing a nonfinal order.
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Join FLexlaw to unlock all legal intelligenceSummers was injured in an accident involving an automobile owned by Alamo Rent-A-Car and leased to Bennett, the driver. Summers sued for damages again…
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. ON MOTION TO DISMISS APPEAL FROM NONFINAL ORDER
GRIMES, Judge.
Summers was involved in an accident with an automobile owned by Alamo Rent-A-Car and leased to Bennett, its driver. After Summers brought suit for damages against them, Bennett and Alamo joined issue with respect to whose carrier had the primary coverage and whose carrier had the secondary coverage. On motion for summary judgment, the court determined that Alamo’s carrier was primary. Alamo and its carrier are now endeavoring to appeal that order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) which reads as follows:
(3) Review of non-final orders of lower tribunals is limited to those which . . . determine . . . the issue of liability in favor of a party seeking affirmative relief.
The case of Ogur v. Mogel, 390 So. 2d 105 (Fla.3d DCA 1980), is directly on point. The court in Ogur held that a similar order was not an appealable nonfinal order under rule 9.130(aX3)(C)(iv) because it did not determine an “issue of liability” and was not a ruling on a motion which sought “affirmative relief.”
In holding that the order did not determine an issue of liability, the court reasoned that the liability of the defendants was inchoate prior to judgment. A reasonable argument could be made for this position except for the fact that it flies in the face of numerous other court decisions. In Travelers Insurance Co. v. Wilson, 261 So. 2d 545 (Fla. 4th DCA 1972), the court specifically rejected the contention that a code-fendant could not take an interlocutory appeal from a partial summary judgment on the issue of liability because the determination of coverage did not at that point carry with it the obligation to pay. Accord, Auto Owners Insurance Co. v. West, 260 So. 2d 534 (Fla.3d DCA 1972), rev’d on other grounds, 276 So. 2d 31 (Fla.1973). While these cases were decided under former Florida Appellate Rule 4.2(a),1 the current rule carries forward the same language insofar as it refers to decisions on “liability.” Moreover, three courts, including the Third District Court of Appeal, have already entertained appeals from nonfinal orders determining insurance coverage under the new rule. Fidelity & Casualty Co. of New York v. Scott, 386 So. 2d 315 (Fla. 1st DCA 1980); State Farm Automobile Insurance Co. v. Kraver, 364 So. 2d 1259 (Fla.3d DCA 1978); York Insurance Co. v. Becker, 364 So. 2d 858 (Fla.2d DCA 1978).
The second ground given by the court in Ogur for dismissing the appeal charts new ground because it construes for the first time the language added to rule 9.130(a)(3)(C)(iv) pertaining to an order entered “in favor of a party seeking affirmative relief.” The court reasoned that where the judge entered the order upon the motion of a codefendant, this did not constitute the obtaining of affirmative relief.2 We are inclined otherwise. As between defendants, there was a claim for affirmative relief. See Simon Hardware Co. v. Pacific Tire & Rubber Co., 199 Cal.App.2d 616, 19 Cal.Rptr. 12 (1962); Sattinger v. Newbauer, 123 Cal.App.2d 365, 266 P. 2d 586 (1954). In the present case, Bennett has successfully prosecuted her affirmative claim that Alamo’s carrier has the primary coverage.3 Therefore, we hold, contrary to Ogur, that an order determining liability coverage in favor of a codefendant is a proper subject for an appeal under rule 9.130(a)(3)(C)(iv).
Motion denied.
SCHEB, C. J., and BOARDMAN, J., concur. . Appeals may be prosecuted in accordance with this rule ... from orders granting partial summary judgment on liability in civil actions . . .
. This ruling would not conflict with the Scott, Kraver, and Becker cases, because in each of those cases, the order determining insurance coverage was made at the insistence of the plaintiff who under the rationale of Ogur would appear to be a party seeking affirmative relief.
. The illustration would be even clearer in a case where the plaintiff did not initially join the defendant’s liability insurance carrier and the defendant filed a third party claim against the carrier which resulted in an order determining the existence of coverage and the duty to defend.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Travelers Ins. Co. v. Bruns, 443 So. 2d 959 (Fla. 1984)…Travelers Insurance Company v. Bruns, 429 So. 2d 317 (Fla. 4th DCA 1983), on the ground of direct and express conflict with P & H Vehicle Rental and Leasing Corp. v. Garner, 416 So. 2d 503 (Fla. 5th DCA 1982), and Alamo Rent-A-Car, Inc. v. Summers, 404 So. 2d 131 (Fla. 2d DCA 1981). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. This case arose from an action against Bruns (respondent) and her alleged insurer, Travelers Insurance Company (petitioner). Insurance coverage was disputed and the trial cour…
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P & H Vehicle Rental & Leasing Corp. v. Garner, 416 So. 2d 503 (Fla. 5th DCA 1982)…to consider it. Weltz v. Mann, 383 So. 2d 324 (Fla. 5th DCA 1980). The portion of the order determining the priority of insurance coverage is more troublesome. We think the correct rule in that regard is stated in Alamo Rent-a-Car, Inc. v. Summers, 404 So. 2d 131 (Fla. 2d DCA 1981). On an identical question of primary vs. secondary coverage in a car rental scenario, raised by co-defendants against each other, as here, the court held that as between the defendants there was a claim for affirmative relief and…
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Travelers Ins. Co. v. Bruns, 429 So. 2d 317 (Fla. 4th DCA 1982)…llate Procedure. We therefore follow the lead of the third district, exemplified by Ogur v. Mogel, 390 So. 2d 105 (Fla. 3d DCA 1980) and certify that an express conflict is thus created between the present case and Alamo Rent-a-Car, Inc. v. Summers, 404 So. 2d 131 (Fla. 2d DCA 1981) and P. & H. Vehicle Rental and Leasing Corp. v. Garner, 416 So. 2d 503 (Fla. 5th DCA 1982). We further acknowledge that we indicated a contrary view in Gallahad Associates v. Rose, 392 So. 2d 44 (Fla. 4th DCA 1980) but in doing…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ogur v. Mollie Mogel, 390 So. 2d 105 (Fla. 3d DCA 1980)
- York Ins. Co. v. Becker, 364 So. 2d 858 (Fla. 2d DCA 1978)
- Cavanaugh v. State, 386 So. 2d 315 (Fla. 2d DCA 1980)
- Travelers Ins. Co. v. Wilson, 261 So. 2d 545 (Fla. 4th DCA 1972)
- State of Fla. ex rel. George Nesselrode v. The Honorable William Piquette, 261 So. 2d 545 (Fla. 3d DCA 1972)
- State Farm Auto. Ins. Co. v. Kraver, 364 So. 2d 1259 (Fla. 3d DCA 1978)
- Auto Owners Ins. Co. v. West, 260 So. 2d 534 (Fla. 3d DCA 1972)
- Auto Owners Ins. Co. v. West, 276 So. 2d 31 (Fla. 1973)