INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, PETITIONER,
v.
GEORGE M. RIDENOUR AND KATHLEEN Y. RIDENOUR, RESPONDENTS
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Indemnity Insurance seeks review of a circuit court order abating its declaratory action regarding coverage duties under a homeowner's policy. The appellate court grants the petition and remands, holding that insurers' declaratory coverage actions should proceed expeditiously rather than be abated pending resolution of the underlying liability action.
The circuit court's order abating the declaratory action is reversed. An insurer's declaratory action to determine its duty to defend should be decided expeditiously by the circuit court, as the factual issues regarding policy coverage are largely extraneous to the liability action and distinct from the duty to defend versus the duty to indemnify.
[1] A declaratory action concerning an insurer's duty to defend should be decided forthwith, rather than abated pending the outcome of a related underlying tort action.
[2] An insurer's duty to defend is distinct from its duty to indemnify.
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Join FLexlaw to unlock all legal intelligence“liability should properly be decided prior to the coverage issue”
Statement from Whatley case that the circuit court relied on in abating the declaratory action, which the court disagreed with
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Join FLexlaw to unlock all legal intelligenceIndemnity Insurance issued a homeowner's policy to respondents George and Kathleen Ridenour, who are defendants in a wrongful death action. Indemnity …
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[*1054] PER CURIAM.
Indemnity Insurance Co. of North America (Indemnity) seeks a writ of certiorari to review the circuit court’s order abating its declaratory action. We grant the petition.
Respondents are defendants in a wrongful death action. Indemnity filed a separate declaratory action to resolve its duty to defend under respondents’ homeowner’s policy. Indemnity cites a “business pursuits” exclusion in its policy which, if applicable to the circumstances of this ease, relieves them of any obligation to provide coverage.1 The abatement issue appears to have arisen at pretrial conference in the declaratory action. The circuit court abated that action pending the outcome of the wrongful death case. Indemnity argues, and we agree, that the procedural circumstances of this case cannot be distinguished from International Surplus Lines Insurance Co. v. Markham, Norton & Co., P.A., 580 So .2d 251 (Fla. 2d DCA 1991).
The motion to abate in Markham was filed in reliance upon Insurance Co. of North America v. Whatley, 558 So. 2d 120,122 (Fla. 5th DCA 1990), which stated that “liability should properly be decided prior to the coverage issue.” This court disagreed, holding that the circuit court should decide the insurer’s declaratory action forthwith, looking to the factual allegations of the plaintiffs complaint to determine whether they fell within policy exclusions. In so doing we distinguished between the duty to defend and the duty to indemnify. See particularly 580 So. 2d at 254 n. 1.
We believe the circuit court should similarly decide Indemnity’s coverage question as expeditiously as possible. Indemnity’s position, which hinges on an interpretation of language in the contract between itself and its insured, requires the resolution of facts largely extraneous to those alleged in and necessary to the plaintiffs’ case. It is appropriate, since providing a defense where no obligation to do so exists has been recognized as “irreparable injury,”2 to determine those facts via a declaratory action.3
The petition for writ of certiorari is hereby granted, the order abating petitioner’s declaratory action is quashed, and this case is remanded to the circuit court for further proceedings consistent with this opinion.
RYDER, A.C.J., and CAMPBELL and BLUE, JJ., concur. . We express no opinion as to the merits of Indemnity's argument regarding the exclusion.
. See, e.g., State Farm Fire & Casualty Co. v. Nail, 516 So. 2d 1022, 1023 (Fla. 5th DCA 1987).
.We find no support in the record for respondents' claim that Indemnity is voluntarily defending them in the liability action.
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Britamco Underwriters, Inc. v. Cent. Jersey Invs., Inc., 632 So. 2d 138 (Fla. 4th DCA 1994)…g that abatement of the coverage dispute is inappropriate when the resolution of the coverage dispute involves facts “largely extraneous to those alleged in and necessary to the plaintiffs case.” Indemnity Insurance Co. of North America v. Ridenour, 629 So. 2d 1053 (Fla. 2d DCA 1994). The coverage dispute in Indemnity Insurance Co. involved the applicability of a business pursuits exclusion. In Allstate Ins. Co. v. Conde, 595 So. 2d 1005 (Fla. 5th DCA 1992) (en banc), the fifth district specifically approved…
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Century Sur. Co. v. de Moraes, 998 So. 2d 662 (Fla. 4th DCA 2009)…(Fla. 5th DCA 2007)(holding that abatement or stay of declaratory judgment action on insurance coverage issues while underlying tort action was pending was a departure from the essential requirements of law), and Indemnity Insurance Co. v. Ridenour, 629 So. 2d 1053 (Fla. 2d DCA 1993)(granting certiorari to quash order abating declaratory judgment action on duty to defend pending outcome of underlying action against insureds). Therefore, we conclude that the trial court departed from the essential requirements…
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TIG Ins. Co. v. Wagner, 707 So. 2d 945 (Fla. 4th DCA 1998)…f notice, an issue which is not involved in the tort action, and if that issue were resolved in favor of the insurer it would have no duty to defend the tort case. We conclude, under Britamco and Indemnity Insurance Co. of North America v. Ridenour, 629 So. 2d 1053 (Fla. 2d DCA 1993) that the trial court departed from the essential requirements of law in granting the motion to abate, and that the insurer will have no remedy on appeal from final judgment. We therefore quash the order granting the motion to abat…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Int'l Surplus Lines Ins. Co. v. Markham, 580 So. 2d 251 (Fla. 2d DCA 1991)
- State Farm Fire & Cas. Co. v. Nail, 516 So. 2d 1022 (Fla. 5th DCA 1987)
- Ins. Co. OF N. Am. v. Mace E. Whatley, 558 So. 2d 120 (Fla. 5th DCA 1990)