Florida Farm Bureau Ins. Co. v. Austin Carpet Service, Inc., KK-352

• Decision Date: 16 January 1979
• Docket Number: No. KK-352,KK-352
• Citation: 382 So.2d 305
• Parties: FLORIDA FARM BUREAU INSURANCE COMPANY, Appellant, v. AUSTIN CARPET SERVICE, INC. and Auto-Owners Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 305

382 So.2d 305

FLORIDA FARM BUREAU INSURANCE COMPANY, Appellant, v. AUSTIN CARPET SERVICE, INC. and Auto-Owners Insurance Company, Appellees.

No. KK-352.

District Court of Appeal of Florida, First District.

Jan. 16, 1979.

Allen W. Lindsay of Beall, Lindsay & Lindsay, Milton, for appellant.

J. LeDon Dewrell and William K. Jennings of Dewrell & Jennings, Fort Walton Beach, Paul R. Green, Milton, and W. Christopher Hart, Pensacola, for appellees.

ON MOTION TO DISMISS

ERVIN, Judge.

The Martins move to dismiss an appeal taken by their homeowners insurer, Florida Farm Bureau, from an order denying the insurer's request for distribution of proceeds to a settlement reached by the Martins and Austin Carpet Service to compensate the Martins for property damage which resulted from a fire in the Martins' home caused by Austin. We conclude the order from which Florida Farm filed its appeal was final and that the appeal was proper.

The Martins' home caught fire, while Austin was replacing carpet in their home, and it was totally destroyed along with its contents. Florida Farm paid $42,535.81 to the Martins as indemnity for their property loss, and after the Martins had filed suit against Austin and its insurer for both personal and property damages, Florida Farm filed a motion to intervene seeking subrogation to any proceeds recovered by the Martins from Austin on their property damage claim. The motion to intervene was granted. Later, in May, 1978, the Martins entered into a settlement agreement with the carpet company and its insurer on their property claim only. The settlement agreement, however, was not reduced to judgment until August 18, 1978, when a partial final judgment was entered which adopted the settlement stipulation. Farm Bureau filed a petition seeking a pro rata distribution of the settlement proceeds as a subrogated party. By order dated May 25, 1978, and filed June 2, 1978, the request for distribution was denied on the ground that the Martins' damages exceeded their total recovery from the defendants. ¹ Petition for rehearing was filed from the June 2 order and was denied by order dated June 12, 1978, and filed on June 16, 1978. On July 11, 1978, a notice was filed from the June 2 order. Finally, on October 4, 1978, an amended notice of appeal was filed in this court from the partial final judgment entered August 18, 1978.

( 1) The primary question before us is whether the June 2 order is a final appealable order or a non-final interlocutory order which is not subject to review. ²

( 2) The test for determining whether an order is subject to review is the finality of the order. Finality, in turn, depends upon whether judicial labor, required or permitted to be done by the trial court, has been performed, other than such proceedings and orders as may be necessary to enforce the judgment. Hollywood, Inc. v. Clark, 153 Fla. 501, 15 So.2d 175 (1943); Blount v. Hansen, 116 So.2d 250 (Fla. 2d DCA 1959); Brown v. Mitchell,151 So.2d 305 (Fla. 1st DCA 1963).

( 3, 4) While the cause remained to be tried as to personal injuries alleged to have been suffered by the Martins, the issue was nevertheless final as to Florida Farm Bureau on its claim for subrogation. Cf. Paradis v. Cicero, 167 So.2d 248 (...