NOVA CASUALTY COMPANY, PETITIONERS,
v.
WILSON DEVELOPERS, LLC, A FLORIDA LIMITED LIABILITY COMPANY; SOUND CONSTRUCTION GROUP, INC., A FLORIDA CORPORATION; ARCHITECTONICS STUDIO, INC., A FLORIDA CORPORATION; TRAE STOKES CONSTRUCTION SERVICES, INC., D/B/A CONSTRUCTION SERVICES, INC., A DISSOLVED FLORIDA CORPORATION; C & O FRAMING AND CONSTRUCTION, INC., A DISSOLVED FLORIDA CORPORATION; C.Q. INSULATION, INC., A FLORIDA CORPORATION; DANIEL INSULATION, INC., N/K/A THOMAS D., INC., A FLORIDA CORPORATION; GYPSUM PRODUCTS, INC., A DISSOLVED FLORIDA CORPORATION; AND STEEL STUD ENTERPRISES, INC., A FLORIDA CORPORATION, RESPONDENTS

Fla. 2d DCA | 2017-02-22
No. Case No. 2D15-5395
CASANUEVA and SILBERMAN, JJ., concur.
212 So. 3d 477 Florida District Court of Appeal, Second District (2017) Caution
Cited by 3 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Nova Casualty Company sought certiorari review of an order adding it as a party to a final judgment in a construction defect case. The court held that the trial court lacked authority to join an insurer as a party to a final judgment entered after the statutory deadline under Florida Statutes § 627.4136(4), and quashed the order.


Holding

The court held that Nova's joinder was improper and untimely under § 627.4136(4) because Sound's motion was filed on October 29, 2014, well after August 19, 2014 (the deadline of fifteen days following entry of judgment on August 4, 2014). Once the judgment became final, the insurer could no longer be added as a party to that judgment, though Sound could pursue a separate declaratory judgment action against Nova.


Headnotes

[1] A liability insurer may be joined as a party defendant for the purposes of entering final judgment or enforcing a settlement only if the motion to join is made at or befo…

[2] Once a judgment becomes final, it cannot be amended to add an insurer as a party.

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Key Quotes

“At the time a judgment is entered or a settlement is reached during the pendency of litigation, a liability insurer may be joined as a party defendant for the purposes of entering final judgment or enforcing the settlement by the motion of any party, unless the insurer denied coverage under the provisions of s. 627.426(2) or defended under a reservation of rights pursuant to s. 627.426(2).”

The statutory requirement governing when an insurer may be joined as a party, establishing the temporal limitation of at or before entry of judgment.

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Facts & Procedural History

Wilson Developers sued Sound Construction Group for defective condominium construction. Sound filed a third-party complaint against subcontractors inc…

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Opinion of the Court
KELLY, Judge.

KELLY, Judge.

Nova Casualty Company seeks certiora-ri review of a nonfinal order adding it as a party to a final judgment. We grant Nova’s petition and quash the order.

Wilson Developers, LLC, filed suit against Sound Construction Group, Inc. (Sound), for defective construction of a condominium. Sound filed a third-party complaint against certain subcontractors, including Steel Stud Enterprises, Inc. Steel Stud failed to respond to the complaint and a default judgment was entered against it on August 4, 2014. On October 29, 2014, Sound moved to initiate proceedings supplementary and sought to implead Nova Casualty Company, Steel Stud’s commercial general liability insurer, and to join Nova as a party. The trial court granted Sound’s motion, impleaded Nova as Steel Stud’s insurer and joined Nova in the final judgment. Nova filed a motion for rehearing, which the trial court denied.

In its petition, Nova argues that joinder was improper because Sound failed to meet the requirements of section 627.4136(4), Florida Statutes (2014). That section states, in pertinent part, as follows:

At the time a judgment is entered or a settlement is reached during the pen-dency of litigation, a liability insurer may be joined as a party defendant for the purposes of entering final judgment or enforcing the settlement by the motion of any party, unless the insurer denied coverage under the provisions of s. 627.426(2) or defended under a reservation of rights pursuant to s. 627.426(2).

Under the statute, a motion to add an insurer must be made prior to, or at the time of, entry of judgment against the defendant. ACE Am, Ins. Co. v. HCP III of Bradenton, Inc., 913 So.2d 1280, 1281 (Fla. 2d DCA 2005) (noting that under the statute, “a liability carrier may be joined at or before the time judgment is entered against its insured”). “Such a motion could also be entertained if made within the time for a motion for rehearing under Florida Rule of Civil Procedure 1.530,” C.A. Seguros Catatumbo v. Herrera, 812 So.2d 576, 577 (Fla. 3d DCA 2002).

Sound’s motion was untimely under section 627.4136(4), because it was not filed at the time of final judgment on August 4, 2014, or within the following fifteen days allowed for a motion for rehearing under rule 1.530. Under rule 1.530, the latest a motion for joinder could have been filed was August 19, 2014. After that date the judgment became final and Nova could no longer be added as a party. See Herrera, 812 So.2d at 577-78 (noting that once the judgment became final, it could not be amended to add the insurer as a party).

Sound argues that this court should dismiss Nova’s petition for lack of jurisdiction because the order impleading Nova as a third party is not appealable. Sound also claims that Nova will not suffer irreparable harm by its impleader in the proceed•ings supplementary. However, as Nova argues, Sound treats impleading a party and joining a party as if they are interchangeable. They are not.

Impleader of a third party in proceedings supplementary “does not in and of itself imply liability on the part of the impleaded third parties.” Instead, it provides the party “with an opportunity to raise them defenses and protect their interests consistent with genuine due process.” Mejia v. Ruiz, 985 So.2d 1109, 1112-13 (Fla. 3d DCA 2008) (recognizing that an insurance company may pi-esent defenses at the proceedings supplementary). However, Nova does not challenge the order impleading it into the proceedings supple*479mentary. Rather, Nova is challenging the order adding it to the final judgment as a party. The trial court departed from the essential requirements of the law by joining Nova as party to a final judgment that had been already rendered. Nova is irreparably harmed because it has been made responsible for coverage without having been given an opportunity to raise any defenses it might have to the determination of entitlement to coverage or the amount of coverage.

Accordingly, we grant the petition for a writ of certiorari and quash the order joining Nova as a party. This holding is without prejudice to Sound’s right to file a separate action against Nova seeking a declaratory judgment for a determination as to coverage. See C.A. Seguros Catatumbo, 812 So.2d at 578.

Petition granted; order quashed.

CASANUEVA and SILBERMAN, JJ., concur.


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Cited By

  • GEICO Gen. Ins. Co. v. Nocella, 224 So. 3d 870 (Fla. 2d DCA 2017)
    …be served not later than 15 days after entry of the judgment ....” (Emphasis added.) Our court has held that both the statute and the rule apply to the joinder of insurers to judgments against their insureds. Nova Cas. Co. v. Wilson Developers, LLC, 212 So. 3d 477, 478 (Fla. 2d DCA 2017) (first citing ACE Am. Ins. Co., 913 So. 2d at 1281; then quoting C.A. Seguros Catatumbo v. Herrera, 812 So. 2d 576, 577 (Fla. 3d DCA 2002)). The latest that Ms. Nocella could have moved to join GEICO to the damages judgment w…
  • Davis v. Evanston Ins. Co., 2018 WL 5098965 (M.D. Fla. 2022)
    …removed because it was improperly joined. Yet again, Evanston is wrong. The nonjoinder statute has no application here. Impleading a party under § 56.29, as Davis did, is not the same as joining a party. See Nova Cas. Co. v. Wilson Devs., LLC, 212 So. 3d 477, 478 (Fla. Dist. Ct. App. 2017). Thus, Davis’s supplementary claim against Evanston does not “violate[] either the letter or the spirit of the nonjoinder statute.” Walton, 2018 WL 5098965, at *12. And even if the nonjoinder statute applies, Evansto…

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