UNIVERSAL SECURITY INSURANCE COMPANY, INC., PETITIONER,
v.
ROBERT SPREADBURY, RESPONDENT
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Universal Security Insurance Company sought certiorari review of an order denying its motion to dismiss in a personal injury action. The court held that an insurance carrier is protected from joinder as a defendant under Florida Statute § 627.7262 unless the plaintiff first obtains a judgment against the insured, and this protection is not waived by the insurer's alleged non-compliance with disclosure requirements.
An insurance carrier is entitled to dismissal under Florida Statute § 627.7262, which prohibits third parties from maintaining a cause of action against a liability insurer without first obtaining a judgment against an insured under the policy. Non-compliance with disclosure requirements in § 627.7264 does not deprive the insurer of this immunity, and questions about coverage between the insured and insurer cannot be litigated between the insurer and third party.
[1] An order denying a motion to dismiss is generally not reviewable by an appellate court, but exceptions exist.
[2] A third party cannot maintain a cause of action against a liability insurer to determine if coverage exists prior to obtaining a judgment against the insured.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a judgment against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.”
States the core statutory requirement that third parties must obtain a judgment against the insured before suing the insurer
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Join FLexlaw to unlock all legal intelligenceSpreadbury filed a personal injury action against Barbara and Dena Ann Curtis arising from an automobile accident and also named Universal Security, t…
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FRANK, Judge.
In its petition for writ of certiorari, Universal Security seeks review of an order denying its motion to dismiss. Notwithstanding the customary inability of a defendant to achieve appellate relief from an order denying a motion to dismiss, the present matter marks an exception to the rule; we have jurisdiction. Cincinnati Insurance Co. v. Moffett, 513 So. 2d 1345 (Fla. 1st DCA 1987); Canadian Home Insurance Co. v. Norris, 471 So. 2d 217 (Fla. 4th DCA 1985). For the reasons stated below, we grant the petition, quash the trial court’s order, and remand with the direction that Universal Security’s motion to dismiss be granted.
Spreadbury filed a personal injury action arising out of an automobile accident against Barbara and Dena Ann Curtis. He also named Universal Security, an insurance carrier, as a defendant. The complaint alleges that pursuant to section 627.-7264, Florida Statutes (1985), Spreadbury was entitled to certain information from Universal Security which it failed to furnish upon request with the result that Universal Security’s insulation from joinder as a defendant, a right provided by section. 627.7262, Florida Statutes (1985), was overcome. Spreadbury’s complaint also alleges that there is a question of whether the Curtises were insured by Universal Security, but it contains no allegation of the existence of a judgment against the Curtis-es as insureds under a Universal Security policy. In a separate count Spreadbury denominated his insurer as a defendant in the event the Curtises were not insured by Universal Security.
Universal Security responded to the complaint with a motion to dismiss based upon section 627.7262. The trial court denied the motion finding that it was unable to determine whether Universal Security was entitled to the benefit of section 627.7262. It appears that the trial court perceived the applicability of section 627.7262 to be dependent upon whether the Curtises were insured by Universal Security.
In pertinent part, section 627.7262 unambiguously provides that:
(1) It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a judgment against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.
(2) No person who is not an insured under the terms of a liability insurance policy shall have any interest in such policy, either as a third-party beneficiary or otherwise, prior to first obtaining a judgment against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.
We find nothing in the statute to deprive Universal Security of section 627.7262’s shield from joinder because it did not comply with the disclosure requirements contained in section 627.7264. Moffett, 513 So. 2d at 1346-1347. Moreover, the trial court’s denial of Universal Security’s motion to dismiss cannot be upheld on the basis of a factual issue associated with the Curtises’ coverage. That question is to be resolved, if at all, between the Curtises and Universal Security, but not between Universal Security and Spreadbury. Under section 627.7262, Spreadbury, a third party, cannot maintain a cause of action against Universal Security to determine if such coverage exists.
Accordingly, we grant the petition for writ of certiorari, quash the trial court’s order, and remand with the direction that that aspect of Spreadbury’s complaint asserting a claim against Universal Security be dismissed.
RYDER, A.C.J., and LEHAN, J., concur.
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Quintana v. The Honorable Frederick N. Barad, 528 So. 2d 1300 (Fla. 3d DCA 1988)…udgment against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy. See VanBibber v. Hartford Accident & Indem. Ins. Co., 439 So. 2d 880 (Fla.1983); Universal Sec. Ins. Co. v. Spreadbury, 524 So. 2d 1167 (Fla. 2d DCA 1988) (§ 627.7262 shields insurer from joinder in action maintained by third party even where insurer fails to comply with disclosure requirements in § 627.7264); Cincinnati Ins. Co. v. Moffett, 513 So. 2d 1345 (Fla. 1st DCA 1987) (same…
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Lantana Ins., Ltd. v. Thornton, 118 So. 3d 250 (Fla. 3d DCA 2013)…as denied and the action abated instead. Generally, certiorari will not lie to address an order denying a motion to dismiss. See S. Owners Ins. Co. v. Mathieu, 67 So. 3d 1156, 1158 (Fla. 2d DCA 2011); see also Universal Sec. Ins. Co. v. Spreadbury, 524 So. 2d 1167, 1167 (Fla. 2d DCA 1988). However, when an insurer demonstrates that the pre-suit requirements of section 627.4136 have not been met, certiorari review of an order denying a motion to dismiss is appropriate. Mathieu, 67 So. 3d at 1158 (“[Wjhere an i…
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S. Owners Ins. Co. v. Mathieu, 67 So. 3d 1156 (Fla. 2d DCA 2011)…determine whether the trial court departed from the essential requirements of the law. See id. at 649. Generally, a party may not obtain a writ of certiorari to quash an order denying a motion to dismiss. See Universal Sec. Ins. Co. v. Spreadbury, 524 So. 2d 1167, 1167 (Fla. 2d DCA 1988). But where an insurer asserts that the presuit requirements of section 627.4136 have not been met, certiorari review is appropriate. See id.; Cincinnati Ins. Co. v. Moffett, 513 So. 2d 1345, 1346 (Fla. 1st DCA 1987). We beli…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Farnell v. State, 471 So. 2d 217 (Fla. 4th DCA 1985)
- Cincinnati Ins. Co. v. Moffett, 513 So. 2d 1345 (Fla. 1st DCA 1987)