TRANSPORTATION CASUALTY INSURANCE COMPANY, N/K/A AEQUICAP INSURANCE COMPANY, APPELLANT,
v.
SOIL TECH DISTRIBUTORS, INC., BULK EXPRESS TRANSPORT, INC., REYNALDO RODRIGUEZ, MARGARET HEATH & KENNETH HEATH, AS CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF JAMES GABRIEL, THE ESTATE OF MARIE GABRIEL, AND THE ESTATE OF MICHAEL GABRIEL, AND MARGARET HEATH & KENNETH HEATH, AS CO-GUARDIANS OF JAMES JOSEPH GABRIEL, APPELLEES

Fla. 4th DCA | 2007-08-08
No. 4D06-1483
POLEN and HAZOURI, JJ., concur.
966 So. 2d 8 Florida District Court of Appeal, Fourth District (2007) Positive Treatment
Cited by 3 cases

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Holding

An insurer is entitled to seek declaratory relief to determine its rights and obligations under a policy, even if rescission is another potential remedy.


Headnotes

[1] The existence of another adequate remedy does not preclude a judgment for declaratory relief.

[2] A declaratory action is an appropriate means by which to determine the issue of insurance coverage, including the duty to defend.

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Facts & Procedural History

Transportation Casualty Insurance Company filed a declaratory judgment action to determine coverage and its duty to defend its insured, Soil Tech, aft…

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Opinion of the Court
WARNER, J.

WARNER, J.

Transportation Casualty Insurance Company appeals a final order dismissing its complaint for declaratory relief against its insured. Because the court concluded that what Transportation sought was rescission of the complaint, it refused to entertain the declaratory judgment action. We reverse, as Transportation was entitled to seek declaratory relief, even though other relief might also be available.

A vehicle owned by Soil Tech and operated by one of its drivers was involved in an automobile accident in which several members of a family were killed or injured. As a result of the accident, a lawsuit was filed against Soil Tech on behalf of the family. Transportation defended under a reservation of rights, as it contended that Soil Tech had misrepresented the condition of its vehicles in violation of its obligations under the policy.

In order to ascertain its responsibilities, Transportation filed suit for declaratory judgment. It sought to determine, inter alia, whether Soil Tech was in compliance with the terms of the policy and the warranties contained therein with respect to the condition of the vehicle; whether Soil Tech had made a material misrepresentation as to the condition of the vehicle; and whether there was liability coverage for the accident and/or a duty to defend under the terms of the policy.

Soil Tech moved to dismiss the declaratory judgment action, claiming that Transportation’s sole remedy was for rescission of the policy. Later, when Transportation settled the underlying tort action, Soil Tech also alleged that the declaratory action was moot.1 The trial court agreed with Soil Tech that Transportation must seek rescission, and it dismissed the complaint. Transportation appeals.

Although the trial court required Transportation to seek rescission, as its sole remedy, “[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief.” § 86.111, Fla. Stat. Moreover, the availability of a remedy is reached after, not before, the determination of a plaintiffs rights. Meadows Cmty. Ass’n v. Russell-Tutty, 928 So. 2d 1276, 1280 (Fla. 2d DCA 2006). A declaratory action is an appropriate means by which to determine the issue of coverage, inclusive of the issue relating to a duty to defend. Effort Enters. of Fla., Inc. v. Lexington Ins. Co., 666 So. 2d 930, 931 (Fla. 4th DCA 1995). Parties seeking declaratory relief must show that:

there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.

May v. Holley, 59 So. 2d 636, 639 (Fla.1952).

Soil Tech’s primary argument is that the insurer was required to plead the elements of rescission, because the insurer was seeking to void the policy. If Soil Tech is arguing that a claim for rescission is the insurer’s only remedy, then this argument is foreclosed by the plain language of section 86.111. If, instead, Soil Tech is arguing that the insurer needed to plead the elements of rescission in order to state a claim for declaratory relief, it has cited no authority that actually supports this heightened pleading requirement.

An insurer may file a declaratory action in order to determine whether an insurance policy is voidable. See United Servs. Auto. Ass’n v. Clarke, 757 So. 2d 554, 555 (Fla. 4th DCA 2000) (“USAA filed a separate declaratory judgment action against the Clarkes seeking to void the insurance policy ab initio because of Clarke’s material misrepresentation in his application for insurance.”). Although a prerequisite to rescission is placing the other party in the status quo ante, see Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So. 2d 306, 313 (Fla.2000), it does not follow that the insurer must allege a return of premiums when seeking a declaratory judgment that it is entitled to void the policy. An insurer may want to know whether a policy is, in fact, voidable before seeking to rescind the policy, and a declaratory judgment is an appropriate means to that end.

Because Transportation was entitled to a declaration of its rights, even if it had a remedy of rescission, the trial court erred in dismissing the complaint. We thus reverse and remand for further proceedings in the declaratory judgment action.

POLEN and HAZOURI, JJ., concur. . Although the trial court did not dismiss the declaratory action on mootness grounds, Soil Tech invites this court to affirm on that basis. We decline the invitation, finding that, based on the limited record before us, there is still a controversy present.


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  • People's Tr. Ins. Co. v. Valentin, 305 So. 3d 324 (Fla. 3d DCA 2020)
    ….” Travelers Ins. Co. v. Emery, 579 So. 2d 798, 801 (Fla. 1st DCA 1991). Additionally, “[a]n insurer may file a declaratory action in order to determine whether an insurance policy is voidable.” Transp. Cas. Ins. Co. v. Soil Tech Distribs., Inc., 966 So. 2d 8, 10 (Fla. 4th DCA 2007) (citing United Servs. Auto. Ass’n v. Clarke, 757 So. 2d 554, 555 (Fla. 4th DCA 2000)). People’s Trust pleaded that it seeks a declaration of its coverage obligations and whether it is entitled to void the subject policy. Ba…
  • People's Tr. Ins. Co. v. Alonzo-Pombo, 307 So. 3d 840 (Fla. 3d DCA 2020)
    …1st DCA 1991) (“[Q]uestions of fact and disagreements concerning coverage under insurance policies are proper subjects for a declaratory judgment if necessary to a construction of legal rights.”); Transp. Cas. Ins. Co. v. Soil Tech Distribs., Inc., 966 So. 2d 8, 10 (Fla. 4th DCA 2007) (“[a]n insurer may file a declaratory action in order to determine whether an insurance policy is voidable.”) (citing United Servs. Auto. Ass’n v. Clarke, 757 So. 2d 554, 555 (Fla. 4th DCA 2000)). The issue before the tria…
  • …ut allege that Count II does not plausibly show the death was by suicide. “An insurer may file a declaratory action in order to determine whether an insurance policy is voidable.” Transp. Cas. ---PAGE 8--- Ins. Co. v. Soil Tech Distributors, Inc., 966 So. 2d 8, 10 (Fla. 4th DCA 2007). Although a presumption against suicide exists, it is overcome when either party introduces evidence of suicide. World Ins. Co. V. Kincaid, 145 So. 2d 268 (Fla. 1st DCA 1962), cert. discharged, 157 So. 2d…

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