Universal Sec. Ins. Co., Inc. v. Spreadbury, 88-831
| Decision Date | 18 May 1988 |
| Docket Number | No. 88-831,88-831 |
| Citation | 13 Fla. L. Weekly 1228,524 So.2d 1167 |
| Parties | 13 Fla. L. Weekly 1228 UNIVERSAL SECURITY INSURANCE COMPANY, INC., Petitioner, v. Robert SPREADBURY, Respondent. |
| Court | Florida District Court of Appeals |
Scott W. Dutton and Frank B. Lieppe of Butler and Burnette, Tampa, for petitioner.
Joseph C. Whitelock of Zewadski & Whitelock, P.A., St. Petersburg, for respondent.
In its petition for writ of certiorari, Universal Security seeks review of an order denying its motion to dismiss. Notwithstanding the customary inability of a defendant to achieve appellate relief from an order denying a motion to dismiss, the present matter marks an exception to the rule; we have jurisdiction. Cincinnati Insurance Co. v. Moffett, 513 So.2d 1345 (Fla. 1st DCA 1987); Canadian Home Insurance Co. v. Norris, 471 So.2d 217 (Fla. 4th DCA 1985). For the reasons stated below, we grant the petition, quash the trial court's order, and remand with the direction that Universal Security's motion to dismiss be granted.
Spreadbury filed a personal injury action arising out of an automobile accident against Barbara and Dena Ann Curtis. He also named Universal Security, an insurance carrier, as a defendant. The complaint alleges that pursuant to section 627.7264, Florida Statutes (1985), Spreadbury was entitled to certain information from Universal Security which it failed to furnish upon request with the result that Universal Security's insulation from joinder as a defendant, a right provided by section 627.7262, Florida Statutes (1985), was overcome. Spreadbury's complaint also alleges that there is a question of whether the Curtises were insured by Universal Security, but it contains no allegation of the existence of a judgment against the Curtises as insureds under a Universal Security policy. In a separate count Spreadbury denominated his insurer as a defendant in the event the Curtises were not insured by Universal Security.
Universal Security responded to the complaint with a motion to dismiss based upon section 627.7262. The trial court denied the motion finding that it was unable to determine whether Universal Security was entitled to the benefit of section 627.7262. It appears that the trial court perceived the applicability of section 627.7262 to be dependent upon whether the Curtises were insured by Universal Security.
In pertinent part, section 627.7262 unambiguously provides that:
(1) It shall be a condition precedent to the accrual or maintenance of a cause of action against a...
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