SUN INSURANCE OFFICE, LTD., APPELLANT,
v.
JEANETTE NOEL, AS EXECUTRIX OF THE ESTATE OF RUZENA TEJCOVA, DECEASED, APPELLEE
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Sun Insurance Office, the insurance carrier of a defendant in a personal injury case, appealed orders denying its motion to stay proceedings pending resolution of a coverage dispute in a foreign forum, and denying its requested jury instructions. The court affirmed, finding no abuse of discretion in the trial court's decisions and holding that the carrier's delay in raising the abatement issue and the trial court's allowance of the coverage question to be litigated in the main action supported the denial of the stay.
The trial court did not abuse its discretion in denying the stay because the plaintiff's action was commenced first and the carrier delayed in raising the abatement issue. The trial court properly declined the jury instructions because the carrier was not a party to the trial and the requested instruction was not in writing. The summary judgment was appropriate because it was consistent with the policy coverage and the carrier failed to demonstrate why the plaintiff's recovery should have been delayed pending foreign proceedings.
[1] A trial court does not abuse its discretion in denying a motion to stay proceedings when the action in the forum court was commenced first.
[2] A party not present at trial cannot demand jury instructions.
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Join FLexlaw to unlock all legal intelligenceSun Insurance was joined as defendant in a personal injury action as the insurance carrier of Cestmir Holoubek. The carrier obtained severance from th…
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These consolidated appeals bring on for review certain orders entered in a personal injury action lately pending in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida.
The appellant was joined as a defendant in the original proceedings as the insurance carrier of one of the defendants, the late Cestmir Holoubek, pursuant to Bussey v. Shingleton, Fla.App.1968, 211 So.2d 593; Shingleton v. Bussey, Fla.1969, 223 So.2d 713. Thereafter, the carrier sought and received a severance pursuant to Beta Eta House Corporation, Inc. of Tallahassee v. Gregory, Fla.1970, 237 So.2d 163. The carrier then instituted an action *8in a foreign forum, attempting to litigate coverage between it and its insured. It then filed a motion to abate or stay the plaintiff’s cause of action in the proceedings pending in the Eleventh Judicial Circuit, pending the determination of the action in the foreign forum as to coverage. This was denied. The matter proceeded to trial on the issues relating to the cause of action against the alleged tort feasor, at the conclusion of which [even though not a party to this trial] the appellant orally moved the trial court to give certain jury instructions. This the trial court declined to do and thereafter, following the jury verdict in favor of the plaintiff, a summary judgment was rendered in favor of the plaintiff against the carrier, and this appeal ensued alleging error in the failure to abate, the failure to give the requested instruction, and the entry of the summary judgment prior to a determination of the coverage action. We affirm.
The action in the Eleventh Judicial Circuit was commenced first, long prior to the institution of the coverage action in the foreign forum. No abuse of discretion has been shown on the part of the trial judge in denying the motion to stay. Tampa Drug Company v. Berger, 68 Fla. 344, 67 So. 97; Linguanti v. Linguanti, Fla.App.1957, 96 So.2d 906; 30 Fla.Jur., Stay of Proceedings, § 3; 1 Am.Jur.2d, Actions, § 97; 1 C.J.S. Actions § 133(6). At the time the appellant made the request for the instruction, it was not a party to the instant trial and the requested instruction was not in writing. Therefore, the action of the trial judge was completely proper. See Rule 1.470(b), RCP, 30 F.S.A. Camp Phosphate Co. for Use and Benefit of Dudley v. Stokes, Fla.1949, 41 So.2d 340; Jayess Investments Limited v. Barbee Foods, Inc., Fla.App.1963, 155 So.2d 853. As to the entry of the summary judgment, it was consistent with the amount of coverage afforded by the policy and the appellant failed to demonstrate any reason why the trial court should have held up the plaintiff’s recovery pending foreign proceedings. The appellant relies principally on the following authorities for the proposition that the trial court should have abated the action: Spadaro v. Palmisano, Fla.App.1959, 109 So.2d 418; American Fidelity Fire Insurance Company v. Johnson, Fla.App.1965, 177 So.2d 679. We find these to be distinguishable. First, because the delay by the carrier in raising the issue long after the institution of the original plaintiff’s cause of action and, second, it does not appear that the trial court prevented the carrier from actually litigating [if it had desired to] the coverage question in the case before him.
Therefore, for the reasons above stated, the final judgment here under review be and the same is hereby affirmed.
Affirmed.
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Rittenbery v. Eddins, 272 So. 2d 840 (Fla. 1st DCA 1973)…in support of the order granting a new trial, and being erroneous as a matter of law, the order should be reversed and the cause remanded with directions that judgment be entered on the verdict. . Sun Insurance Office, Ltd. v. Noel (Fla. App.1971) 254 So. 2d 7; Schiffman v. Powell System, Inc. (Fla.App.1971) 246 So. 2d 171; Marlowe v. State, 139 Fla. 307, 190 So. 602; Prevatt v. State, 135 Fla. 226, 184 So. 860.…
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SUN Ins. Off., Ltd. v. Noel, 260 So. 2d 520 (Fla. 1972)…Certiorari denied. 254 So. 2d 7. ROBERTS, C. J., and ERVIN, CARLTON, ADKINS and DEKLE, JJ., concur.…
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First Prudential Bank of W. Palm Beach v. Rolle, 45 Fla. Supp. 128 (Fla. Cty. Ct. 1976)…olicy of the state of Florida and must be liberally construed in order to effect the purpose of the statute which is to preserve to the unfortunate debtor and his family a means of living without becoming charges upon the public. Maryl v. Hernandez, 254 So. 2d 7 (Fla. 3d DCA 1971); Elvine v. Public Finance Company, 196 So. 2d 25 (Fla. 3d DCA 1967). Without question, these principles apply to the Rolle and Sjosten cases. In both instances the monies are in the hands of third parties. Ultimately, however, thi…
Authorities Cited
- Shingleton v. Bussey, 223 So. 2d 713 (Fla. 1969)
- Gulf Stream Motors, Inc. v. Christina Cook & the Fla. Indus. Comm'n, 223 So. 2d 713 (Fla. 1969)
- Beta ETA House Corp. v. Gregory, 237 So. 2d 163 (Fla. 1970)
- Am. Fid. Fire Ins. Co. v. Johnson, 177 So. 2d 679 (Fla. 1st DCA 1965)
- Bussey v. Shingleton, 211 So. 2d 593 (Fla. 1st DCA 1968)
- Jayess Invs. Ltd. v. Barbee Foods, Inc., 155 So. 2d 853 (Fla. 3d DCA 1963)
- Angeline Spadaro v. Palmisano, 109 So. 2d 418 (Fla. 3d DCA 1959)
- Camp Phosphate Co. v. Stokes, 41 So.2d 340 (Fla. 1949)
- Tampa Drug Co. v. Berger, 68 Fla. 344 (Fla. 1914)
- Linguanti v. Linguanti, 96 So. 2d 906 (Fla. 2d DCA 1957)