Summary
In TIG Ins. Co. v. Wagner, 707 So.2d 945 (Fla. 4th DCA 1998), the court held it error for the trial court to abate the insurer's declaratory action seeking a determination of its duty to indemnify or defend [in that case based on lack of notice rather than lack of coverage] holding that if that issue were resolved in favor of the insurer it would have no duty to defend the tort action.
Summary of this case from Twin City Fire Insurance v. RudolphOpinion
Case No. 97-3389
Opinion filed March 18, 1998 JANUARY TERM 1998
Petition for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Miette K. Burnstein, Judge; L.T. Case No. 97-07571 (07).
Geralyn M. Passaro of Peters, Robertson, Lax, Parsons, Welcher, Mowers Passaro, Fort Lauderdale, for petitioner.
Steven M. Katzman and Robert J. Hauser of Tew Beasley, L.L.P., West Palm Beach, for Respondent-Stephen J. Wagner.
Petitioner insurer seeks certiorari from an order abating its declaratory action seeking to determine coverage. We have jurisdiction. Britamco Underwriters, Inc. v. Central Jersey Invs., Inc., 632 So.2d 138 (Fla. 4th DCA 1994)(trial court departed from essential requirements of law, and insurer had no adequate remedy on appeal from final judgment,where trial court abated declaratory action to determine coverage pending outcome of tort case).
In the present case the insurer is contesting coverage based on lack of notice, an issue which is not involved in the tort action, and if that issue were resolved in favor of the insurer it would have no duty to defend the tort case. We conclude, underBritamco and Indemnity Insurance Co. of North America v. Ridenour, 629 So.2d 1053 (Fla. 2d DCA 1993) that the trial court departed from the essential requirements of law in granting the motion to abate, and that the insurer will have no remedy on appeal from final judgment. We therefore quash the order granting the motion to abate so that the declaratory action can proceed on the issue of whether the insurer has no duty to defend or indemnify because of lack of notice.
WARNER and FARMER, JJ., concur.