COHEN, SCHERER & COHEN, P.A., A/K/A COHEN, SCHERER, COHN & SILVERMAN, P.A., AND FRED C. COHEN, APPELLANT,
v.
PACIFIC EMPLOYERS INSURANCE COMPANY, APPELLEE
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Appeal of counterclaim dismissal is premature because the main claim remains pending and both claims arise from the same insurance policy dispute, so the appeal is dismissed without prejudice.
An appeal of an order dismissing a counterclaim is premature when the main claim is still pending and both claims are interrelated.
[1] An order disposing of a compulsory counterclaim cannot be appealed until final disposition of the main claim when both claims are interrelated and arise from the same tra…
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Join FLexlaw to unlock all legal intelligenceAn insurer settled a legal malpractice case against its insured law firm, paid the $50,000 deductible owed by the firm, and then sued the firm to reco…
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KLEIN, Judge.
The court, sua sponte, dismisses this appeal of an order dismissing a counterclaim with prejudice but leaving the main claim pending.
Appellee/insurer settled a legal malpractice case brought against its insured, appellant/law firm, and paid the $50,000 deductible which the law firm was obligated to pay under the policy. Insurer then brought this suit against the law firm to collect the $50,-000 deductible, and the law firm counterclaimed, alleging that the insurer breached its obligations under the policy to properly defend the law firm. The trial court dismissed the counterclaim with prejudice because it failed to state a cause of action.
Since the main claim is still pending, and since the main claim and the counterclaim are interrelated in that they both arise out of the malpractice claim and the obligations of the parties under the insurance policy in regard to the malpractice claim, this appeal is premature under S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97 (Fla.1974). See also City of Haines v. Allen, 509 So. 2d 982 (Fla. 2d DCA 1987) (an order disposing of a compulsory counterclaim cannot be appealed until disposition of the main claim).
This appeal is therefore dismissed without prejudice to appellant’s right to appeal the dismissal of the counterclaim after final determination of the main claim.
POLEN and STEVENSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cole v. Bayley Prods., Inc., 661 So. 2d 1299 (Fla. 4th DCA 1995)…le to defendant’s lawyer. We have no jurisdiction on this non-final appeal to review the order striking defendant’s compulsory counterclaim. S.L.T. Warehouse v. Webb, 304 So. 2d 97 (Fla.1974); Cohen, Scherer & Cohen, P.A. v. Pac. Employers Ins. Co., 654 So. 2d 282 (Fla. 4th DCA 1995). In Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993), plaintiffs medical malpractice action had been dismissed with prejudice by the trial court after plaintiff had failed to file an amended complaint for over five months beyond t…
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Lenahan v. Russell L. Forkey, P.A., 655 So. 2d 1311 (Fla. 4th DCA 1995)…aim, which is interrelated with the counterclaim and arises from the same transaction, remains pending. Accordingly, an appeal from an order disposing of the counterclaim is premature. See Cohen, Scherer, & Cohen, P.A. v. Pacific Employers Ins. Co., 654 So. 2d 282 (Fla. 4th DCA 1995); Johnson v. Allen, Knudsen, DeBoest, Edwards & Rhodes, P.A., 621 So. 2d 507 (Fla.2d DCA 1993); S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97 (Fla.1974). The fact that the trial court stayed the main claim pending disposition of t…
Authorities Cited
- S. L. T. Warehouse Co. v. Wilmott Webb, 304 So. 2d 97 (Fla. 1974)
- City OF Haines City v. Allen, 509 So. 2d 982 (Fla. 2d DCA 1987)