Liberty Mut. Ins. Co. v. Lone Star Industries, Inc., 89-1278

• Decision Date: 03 October 1989
• Docket Number: No. 89-1278,89-1278
• Citation: 556 So.2d 1122,14 Fla. L. Weekly 2307
• Parties: 14 Fla. L. Weekly 2307 LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. LONE STAR INDUSTRIES, INC., Appellee.
• Court: Florida District Court of Appeals

Page 1122

556 So.2d 1122

14 Fla. L. Weekly 2307

LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. LONE STAR INDUSTRIES, INC., Appellee.

No. 89-1278.

District Court of Appeal of Florida,

Third District.

Oct. 3, 1989.

Rehearing Denied March 13, 1990.

Gaston & Snow and Lee H. Glickenhaus, Akerman, Senterfitt & Eidson and William E. Sadowski and G. Alan Howard, Miami, for appellant.

Keith, Mack, Lewis, Allison & Cohen and R. Hugh Lumpkin, Miami, for appellee.

Before NESBITT, BASKIN and COPE, JJ.

ON MOTION TO DISMISS

PER CURIAM.

An order resolving a coverage issue between insured and insurer is not appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) because such an issue does not resolve liability in favor of a party seeking affirmative relief and because the purpose of the rule is to restrict interlocutory appeals in order to curb piecemeal litigation. Travelers Ins. Co. v. Bruns, 443 So.2d 959 (Fla.1984); see also Logozzo v. Kent Ins. Co., 464 So.2d 605 (Fla. 3d DCA 1985). Furthermore, "the theory underlying the more restrictive rule is that appellate review of non-final judgments serves to waste court resources and needlessly delays final judgment." Bruns, 443 So.2d at 961.

Motion to dismiss granted.

NESBITT and BASKIN, JJ., concur.

COPE, Judge (dissenting).

I respectfully dissent.

The proceeding below is a declaratory judgment action in which Lone Star Industries, Inc. brought suit against its insurer, Liberty Mutual Insurance Company, requesting a determination in count I, that Liberty Mutual was obliged to defend Lone Star in separately pending environmental litigation, and in count II, that Liberty Mutual is obliged to indemnify Lone Star for any judgment that may be rendered. The trial court entered an order granting partial summary judgment as to the duty to defend, thus granting most, if not all, of the relief sought by Lone Star in count I.

Liberty Mutual has appealed and Lone Star has moved to dismiss the appeal. In my view, the motion is not well-founded.

First, it is true that the order under review is an order granting a motion for partial summary judgment and has not been reduced to the form of a "partial summary judgment." Because Rule 9.130(a)(3)(C)(iv) expressly permits review of "nonfinal orders of lower tribunals" (emphasis added) which otherwise meet the criteria specified in the rule, the order is reviewable whether or not it takes the form of a "judgment." In that respect I agree with the dissent in Bravo Electric Co. v. Carter Electric Co., 522 So.2d 480, 481 (Fla. 5th DCA 1988), see generally H. Trawick, Trawick's Florida Practice & Procedure § 25-8, at 358 (1988), and would adopt that analysis. The decisions in Logozzo v. Kent Insurance Co., 464 So.2d 605 (Fla. 3d DCA 1985), and Kessler v. Gumenick, 358 So.2d 1167 (Fla. 3d DCA 1978), relied on by the majority, do not address the specific issue under review here.

In the present case, unlike Travelers Insurance Co. v. Bruns, 443 So.2d 959 (Fla.1983), the action is a first-party action by an insured against its own insurance company. The...