WEST AMERICAN INSURANCE COMPANY, APPELLANT,
v.
LUANN NIXON, MARY LOU POWELL, JOHN T. MORRIS AND JOY MORRIS, AS PARENTS AND NATURAL GUARDIANS OF STEPHANIE NICOLE MORRIS, A MINOR, AND JOHN T. MORRIS AND JOY MORRIS, INDIVIDUALLY, APPELLEES
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Court dismissed insurer's appeal of a partial summary judgment finding breach of duty to defend as premature, holding that the order determining liability on one count of a multi-count counterclaim constitutes an impermissible piecemeal appeal.
An appeal of a partial summary judgment on one count of a multi-count counterclaim involving the same transaction and parties is premature and should be dismissed without prejudice.
[1] An appeal of a partial summary judgment on one count of a multi-count counterclaim involving the same transaction and parties constitutes an impermissible piecemeal appea…
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Join FLexlaw to unlock all legal intelligenceAn insurer denied coverage and refused to defend insureds in a negligence action that resulted in a substantial judgment against them. The insureds fi…
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HERSEY, Chief Judge.
Appellant, insurer, seeks review of a non-final order holding that a duty to defend appellees, insureds under a homeowner’s policy, had been breached when the insurer denied coverage and did not provide a defense in a negligence action previously concluded and in which a substantial judgment was entered against the insureds. The present order takes the form of a partial summary judgment entered on one count of a six-count counterclaim interposed by the appellees, insureds, in an action for declaratory relief commenced by appellant.
We conclude that the order is appealable under rule 9.130(a)(3)(C)(iv), Florida Rules of Appellate Procedure, as one determining an issue of liability in favor of parties seeking affirmative relief, semble, Allstate Insurance Co. v. Arvida Corp., 421 So. 2d 741 (Fla. 4th DCA 1982) (to be distinguished from cases where the issue is coverage rather than duty to defend, e.g., Travelers Insurance Co. v. Bruns, 443 So. 2d 959 (Fla.1984)). We nonetheless hold that since the order deals with the same transaction and parties as are involved in undisposed-of-counts II through VI of the counterclaim, the appeal, being in the nature of a piecemeal appeal cautioned against in Mendez v. West Flagler Family Association, Inc., 303 So. 2d 1 (Fla.1974), should not be presently entertained. See Gause v. First Bank of Marianna, 442 So. 2d 1062 (Fla. 1st DCA 1983); Gibbs v. Reliance Insurance Co., 399 So. 2d 1108 (Fla. 5th DCA 1981). We therefore dismiss the appeal, without prejudice, as being premature.
APPEAL DISMISSED.
DOWNEY and DELL, JJ., concur.
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Citator
Cited By
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Altair Maint. Servs., Inc. v. GBS Excavating, Inc., 655 So. 2d 1281 (Fla. 4th DCA 1995)…s. Although Mendez considered an order that dismissed one count of a complaint, our court has applied the same test to orders granting partial summary judgments where other interrelated counts remained pending. See West American Insur. Co. v. Nixon, 489 So. 2d 876, 877 (Fla. 4th DCA 1986). In Nixon, we held that even where a partial summary judgment meets the definition of an appealable, non-final order under rule 9.130(a)(3)(C)(iv), the appeal will be dismissed if the unresolved counts involve the same trans…
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Liberty Mut. Ins. Co. v. Lone Star Indus., Inc., 556 So. 2d 1122 (Fla. 3d DCA 1989)….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…
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City OF OPA Locka v. Hill, 590 So. 2d 952 (Fla. 3d DCA 1991)…, the pending counts are not separate and distinct from the counts decided in the order on appeal. See Mendez v. West Flagler Family Ass’n, Inc., 303 So. 2d 1 (Fla.1974). For these reasons, the appeal should be dismissed. West Am. Ins. Co. v. Nixon, 489 So. 2d 876 (Fla. 4th DCA 1986); but see, Division of Admin., State of Fla. Dept. of Transp. v. Mobile Gas Co., Inc., 427 So. 2d 1024 (Fla. 1st DCA), review denied, 437 So. 2d 677 (Fla.1983). . In the summary judgment motion, appellee contended that Hill’s c…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mendez v. W. Flagler Fam. Ass'n, Inc., 303 So. 2d 1 (Fla. 1974)
- Travelers Ins. Co. v. Bruns, 443 So. 2d 959 (Fla. 1984)
- Allstate Ins. Co. v. Arvida Corp., 421 So. 2d 741 (Fla. 4th DCA 1982)
- Gause v. First Bank OF Marianna, 442 So. 2d 1062 (Fla. 1st DCA 1983)
- Gertrude Gibbs v. Reliance Ins. Co., 399 So. 2d 1108 (Fla. 5th DCA 1981)