Donnell v. Industrial Fire and Cas. Co., 78-2380

CourtCourt of Appeal of Florida (US)
Writing for the CourtSCHWARTZ
Citation378 So.2d 1344
PartiesJames DONNELL, Appellant, v. INDUSTRIAL FIRE AND CASUALTY CO., an Illinois Corporation, a/t/d/b in the Stateof Florida, Appellee.
Docket NumberNo. 78-2380,78-2380
Decision Date22 January 1980

Page 1344

378 So.2d 1344
James DONNELL, Appellant,
v.
INDUSTRIAL FIRE AND CASUALTY CO., an Illinois Corporation, a/t/d/b in the Stateof Florida, Appellee.
No. 78-2380.
District Court of Appeal of Florida, Third District.
Jan. 22, 1980.

Page 1345

Horton, Perse & Ginsberg, Arnold R. Ginsberg and Leo B. West, Miami, for appellant.

Jeanne Heyward, Goodhart & Rosner, Miami, for appellee.

Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD (Ret.), Associate Judge.

SCHWARTZ, Judge.

James Donnell, who was the plaintiff below, appeals from a summary judgment entered in favor of the defendant-appellee, Industrial Fire and Casualty Co., on the ground that the action was barred under the doctrine of res judicata. We reverse.

In the case now before us, Donnell directly sued Industrial Fire, as the liability carrier for one Vonnie Horne, to recover a $30,000 default judgment the plaintiff had obtained against Horne for injuries sustained in an automobile accident. The insurer's defense of Res judicata was based on the fact that Industrial Fire had originally been an additional party defendant in the case against Horne. In that case, however, Industrial Fire moved to dismiss the complaint as against it and the attorney supplied by the carrier to represent him had moved to withdraw as counsel, on the ground that Horne had failed to cooperate with the company in his defense. 1 On these motions the trial court entered the following order: 2

THIS CAUSE having come on to be heard before me upon Defendant INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY'S Motion to Withdraw as Counsel for Defendant VONNIE DAVID HORNE on the grounds that said Defendant has not cooperated in the defense of this cause under the terms and provisions of his insurance policy, and Defendant INDUSTRIAL FIRE AND CASUALTY'S Motion to Dismiss, and after hearing argument of counsel, and the Court being fully advised in the premises, it is hereby

ORDERED AND ADJUDGED that INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY'S Motion to Withdraw as Counsel for Defendant VONNIE DAVID HORNE be, and the same Is hereby GRANTED, and it is further

ORDERED AND ADJUDGED that INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY'S Motion to Dismiss be, and the same Is hereby GRANTED. (e. s.) 3

Contrary to the conclusion reached below, the proceedings in the initial action, as a matter of law, did not have the dispositive effect which is necessary to support a claim of res judicata upon either the plaintiff's right to recover or the company's defense

Page 1346

of the insured's breach of the cooperation clause. It is clear, first of all, that permitting insurance counsel to withdraw from Horne's representation cannot be so regarded, As was said in Peerless Ins. Co. v. Sheehan, 194 So.2d 285, 287 (Fla. 2d DCA 1967):

We are of the opinion that the order...

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15 practice notes
  • Edward L. Nezelek, Inc. v. Sunbeam Television Corp., WCKT-TV and R
    • United States
    • Court of Appeal of Florida (US)
    • March 16, 1982
    ...3d DCA 1980); Gries Investment Company v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980); Donnell v. International Fire & Casualty Co., 378 So.2d 1344 (Fla. 3d DCA 1980). However, Rule 9.130(g), Florida Rules of Appellate Procedure authorizes this court to review initially non-final orders ......
  • Hoechst Celanese Corp v. Fry, Nos. 96-1211
    • United States
    • Court of Appeal of Florida (US)
    • March 19, 1997
    ...which could not provide the basis for a claim of res judicata or collateral estoppel. See Donnell v. Industrial Fire and Casualty Co., 378 So.2d 1344, 1346 (Fla. 3d DCA 1980); see also Edwards v. Kings Point Housing Corp., 351 So.2d 1073, 1074 (Fla. 4th DCA 1977) (holding order granting sum......
  • Gries Inv. Co. v. Chelton, No. 79-2114
    • United States
    • Court of Appeal of Florida (US)
    • September 30, 1980
    ...See Aetna Casualty & Surety Company v. Meyer, 385 So.2d 10 (Fla. 3d DCA 1980); Donnell v. Industrial Fire and Casualty Company, 378 So.2d 1344 (Fla. 3d DCA 1980), and cases collected therein. Obviously implicit in any order granting a motion for summary judgment is that it is with preju......
  • Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, No. 79-2993
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 19, 1981
    ...res judicata or collateral estoppel effect only if it qualifies as a final judgment. See Donnell v. Industrial Fire & Casualty Co., 378 So.2d 1344 (Fla.1980); 19 Fla.Jur., Judgments and Decrees §§ 131, 132. An interlocutory order in a Florida court has no res judicata effect in a subseq......
  • Request a trial to view additional results
15 cases
  • Edward L. Nezelek, Inc. v. Sunbeam Television Corp., WCKT-TV and R
    • United States
    • Court of Appeal of Florida (US)
    • March 16, 1982
    ...3d DCA 1980); Gries Investment Company v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980); Donnell v. International Fire & Casualty Co., 378 So.2d 1344 (Fla. 3d DCA 1980). However, Rule 9.130(g), Florida Rules of Appellate Procedure authorizes this court to review initially non-final orders ......
  • Hoechst Celanese Corp v. Fry, Nos. 96-1211
    • United States
    • Court of Appeal of Florida (US)
    • March 19, 1997
    ...which could not provide the basis for a claim of res judicata or collateral estoppel. See Donnell v. Industrial Fire and Casualty Co., 378 So.2d 1344, 1346 (Fla. 3d DCA 1980); see also Edwards v. Kings Point Housing Corp., 351 So.2d 1073, 1074 (Fla. 4th DCA 1977) (holding order granting sum......
  • Gries Inv. Co. v. Chelton, No. 79-2114
    • United States
    • Court of Appeal of Florida (US)
    • September 30, 1980
    ...See Aetna Casualty & Surety Company v. Meyer, 385 So.2d 10 (Fla. 3d DCA 1980); Donnell v. Industrial Fire and Casualty Company, 378 So.2d 1344 (Fla. 3d DCA 1980), and cases collected therein. Obviously implicit in any order granting a motion for summary judgment is that it is with preju......
  • Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, No. 79-2993
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 19, 1981
    ...res judicata or collateral estoppel effect only if it qualifies as a final judgment. See Donnell v. Industrial Fire & Casualty Co., 378 So.2d 1344 (Fla.1980); 19 Fla.Jur., Judgments and Decrees §§ 131, 132. An interlocutory order in a Florida court has no res judicata effect in a subseq......
  • Request a trial to view additional results

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