DIANA MUCHA, APPELLANT,
v.
ATLAS VAN LINES, INC., ET AL., APPELLEE
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The court held that dismissal with prejudice was error because the complaint's allegations were sufficient to state a cause of action against the insurer.
Plaintiff sued moving companies and their insurer for property damage and personal injury due to negligence during a move. The trial court dismissed t…
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PER CURIAM.
Diana Mucha appeals from a final order dismissing her lawsuit against Hanover Insurance Company. We reverse.
Mucha’s claims arose from property damage and personal injuries that occurred during the moving and storage of the furniture and other contents of her home. She alleges that many of her possessions were lost or destroyed and that she sustained personal injury when improperly stacked shelving fell on her as a result of the moving company’s negligence.
Mucha brought suit against Avatar Relocation, Inc., Atlas Van Lines, Inc., and Hanover Insurance Company. The sufficiency of the complaint vis-a-vis Atlas and Avatar are not the subject of this appeal. The trial court dismissed the complaint based upon section 627.4136, Florida Statutes (2007), Florida’s non-joinder statute. The trial judge ruled that Hanover was Avatar’s liability insurer, rather than a first-party insurer. In reviewing the dismissal with prejudice we look to the four corners of the complaint and accept as true all well-pled allegations. Huet v. Mike Shad Ford, Inc., 915 So. 2d 723, 725 (Fla. 5th DCA 2005). The allegations in the third amended complaint are sufficient to state a cause of action. The language in the unauthenticated document that formed the basis for the trial court’s dismissal contained language that could be construed as directly indemnifying Mucha for any losses sustained. We express no opinion as to whether a cause of action against Hanover can withstand summary judgment. However, dismissal with prejudice at this stage of the proceedings was error. REVERSED.
ORFINGER, TORPY, and COHEN, JJ., concur.
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Citator
Cited By
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Starr Indem. & Liab. Co. v. Helon S. Morris, 155 So. 3d 429 (Fla. 3d DCA 2015)…a direct claim against Starr as an omnibus insured under the policy. Morris is correct that section 627.4136 does not technically apply when a claimant alleges that he or she is an insured under the policy terms. See Mucha v. Atlas Van Lines, Inc., 989 So. 2d 697, 698 (Fla. 5th DCA 2008). Accordingly, the trial court correctly denied Starr’s motion to dismiss the action with prejudice. Id. However, the legislative intent underlying section 627.4136 mandates that the direct action against Starr be severed to…
Authorities Cited
- Ward L. Huet and Joan Huet v. Mike Shad Ford, Inc., 915 So. 2d 723 (Fla. 5th DCA 2005)