26 Fla. L. Weekly D327a
Insurance — Duty to defend — Appeals — Where insured’s action against insurers alleged breach of contract and misrepresentations in connection with expenses incurred in remediating pollution, and included an allegation that insurers owed insured the duty to defend claims arising from environmental conditions, and insurers filed motion to dismiss duty to defend allegations on the ground that no “suit” existed which would trigger any duty to defend, trial court order granting motion to dismiss duty to defend allegations was not an appealable order — Order was not a partial final judgment of dismissal, and order did not determine liability in favor of a party seeking affirmative relief — Order dismisses only portions of causes of action asserted against insurers and does not dispose of an entire case against any party
MIAMI-DADE COUNTY, FLORIDA, Appellant, v. AVIATION OFFICE OF AMERICA, et al., etc., Appellees. 3rd District. Case No. 3D00-1794. L.T. Case No. 96-23008. Opinion filed January 31, 2001. An Appeal from the Circuit Court for Miami-Dade County, Steve Levine, Judge. Counsel: Greenberg Traurig, and Elliot H. Scherker, and Reginald L. Bouthillier, Jr. (Tallahassee), and Mitchell J. Rotbert (Washington, DC), for appellant. Phelps Dunbar, L.L.P., and Jay Russell Sever, and Alistair M. Ward (New Orleans, La.), and Anania, Bandklayder, Blackwell, Baumgarten & Torricella, and Francis A. Anania, for appellees.
(Before JORGENSON, COPE, and RAMIREZ, JJ.)On Motion to Dismiss
(PER CURIAM.) Appellant, Miami-Dade County, is the plaintiff below in a suit seeking declaratory judgment and reformation, and alleging breach of contract and misrepresentation against numerous insurance companies in connection with expenses it has incurred in remediating pollution that exists in and around Miami International Airport. The County alleged, among other things, that Appellees, Westport Insurance Corporation, Certain Underwriters at Lloyds, London and Certain London Market Insurance Companies, owed it a duty to defend against claims arising from alleged environmental conditions on the airport property pursuant to certain insurance policies the appellees issued to the County. Appellees moved to dismiss the duty to defend allegations made in the complaint against them and successfully argued that a “suit” did not exist within the meaning of the insurance policies attached to the complaint and that a “suit” was required in order to trigger any duty to defend under those policies. The trial court dismissed only the allegations regarding the duty to defend and granted the County leave to amend. The County did not amend the complaint, but, instead, filed a notice of appeal of the dismissal order with this Court. As we conclude there is no appealable order, we dismiss the appeal.
Even if we disregard the fact that the trial court gave the County leave to amend, the order is not a “partial final judgment of dismissal” within the meaning of rule 9.110(k) of the Florida Rules of Appellate Procedure, nor does it determine liability in favor of a party seeking affirmative relief which would make it an appealable order under rule 9.130(a)(3)(C)(iv). See Northcutt v. Pathway Fin., 555 So. 2d 368 (Fla. 3d DCA 1989). The order dismisses only portions of the causes of action that the County has asserted against these insurers and does not dispose of an entire case against any party.
In Liberty Mutual Insurance Co. v. Lone Star Industries, Inc., 556 So. 2d 1122 (Fla. 3d DCA 1989), the trial court determined that the insurer had a duty to defend and the insurer sought to appeal that order. We dismissed the appeal and held that an order resolving a coverage issue between an insured and an insurer was not appealable because such an issue did not resolve liability in favor of a party seeking affirmative relief and because the purpose of the rule was to restrict interlocutory appeals in order to curb piecemeal litigation. 556 So. 2d at 1223. There is no reason for a different result when the trial court determines there is no duty to defend.
As the order under review is a non-final, non-appealable order, this appeal is dismissed.
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(COPE, J., concurring.) The law regarding when there can be a non-final appeal of an insurance coverage issue has been aptly described as a “quagmire.” Raoul G. Cantero, III, Nonfinal Review of Insurance Coverage Issues: Wading Through the Quagmire, 69 Fla. Bar J. 81, 81 (October 1995).
This is not a case in which the insured, Miami-Dade County, is attempting to compel the insurers to take over the defense of presently-pending litigation. If the effect of the trial court ruling is to grant or deny what amounts to specific performance of the duty to defend, then such an order should be immediately reviewable as an order granting or denying an injunction. Southeast Mech. Contractors of Tampa, Inc. v. M.A. Mortenson Co., 685 So. 2d 1316, 1317 (Fla. 2d DCA 1996).1
The County’s lawsuit against the insurers in this case alleges that the insurers must indemnify the County for pollution damage at the airport. As to the duty to defend, the County requests damages for failure of the insurers to defend the County in civil lawsuits and administrative proceedings. The trial court has simply rendered an interlocutory ruling holding that, as written, these policies do not provide for a duty to defend the insured against administrative proceedings. The claim for damages for failure to defend against the civil lawsuits remains pending, as does the claim for indemnity for pollution damage.
Boiled down, this is a garden variety suit for damages, seeking reimbursement for defense expenses and pollution cleanup. The claims are all factually interwoven. There is no sound reason to allow a piecemeal appeal at this time.2 It would be a different matter if the effect of the trial court ruling was to grant or deny specific performance of the duty of the insurer to defend ongoing litigation, but I see no such claim in this case. I concur that dismissal is in order.
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(Jorgenson, Judge, dissenting.) Because the order under review is an appealable nonfinal order that determines the insurers’ duty to defend, I respectfully dissent from the order of dismissal.
The complaint filed by Dade County seeks a declaration that the insurers have a duty to defend the County in this complex environmental clean-up litigation, and also seeks to recover the costs of investigation and defense of the administrative proceedings and litigation. The court’s view of this appeal as only a damages case is short-sighted, and the dismissal leaves the parties in a state of uncertainty. It makes no sense to consider what damages can be recovered in connection with the defense of a cause unless and until the duty to defend such cause has been established.
Moreover, although the underlying facts may at times overlap both the administrative proceedings and the litigation, the County did not seek a general declaration that the insurers had a duty to defend. Instead, they sought a specific declaration that the insurers had a duty to defend the County in administrative proceedings. There is a plethora of case law in other jurisdictions3 that addresses duty to defend in the context of administrative proceedings versus litigation; that specific duty may be considered apart from the litigation arena. See, e.g., Certain Underwriters at Lloyd’s of London v. Powerine Oil Co., 89 Cal. Rptr.2d 706 (Cal. Ct. App. 1999) (holding that insurer’s obligation to defend “suit” did not create duty to defend administrative environmental proceedings), Employers Ins. of Wausau v. EHLCO Liquidating Trust, 687 N.E. 2d 82 (Ill. App. Ct. 1997) (same). Contra, Travelers Indem. Co. v. Summit Corp. of America, 715 N.E.2d 926 (Ind. Ct. App. 1999) (holding that administrative proceedings in environmental cleanup action were “suits” that triggered the insurer’s duty to defend). In short, administrative proceedings and litigation may involve the same environmentally affected property. Some of the same issues and facts may be implicated in both. However, review of this order would not create “piecemeal appeals,” as the nature of the proceedings is so different that insurers’ duties may not encompass both.
This court has reviewed and reversed a nonfinal order “granting partial summary judgment and finding that [an insurer] has a duty to defend.” See Liberty Mut. Ins. Co. v. Lone Star Indus., Inc., 661 So. 2d 1218, 1221 (Fla. 3d DCA 1995). Although the concurrence is correct in stating that the court did not address whether the order was in fact appealable, the reversal on the merits would seem to indicate that the court acknowledged that it had jurisdiction.
This case should proceed on the merits, and not be dismissed for lack of jurisdiction.
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1This court dismissed such an appeal in Liberty Mut. Ins. Co. v. Lone Star Indus., Inc., 556 So. 2d 1122 (Fla. 3d DCA 1989). The trial court had ruled that the insurer had a duty to defend. The insurer appealed, arguing that the order finding that the insurer had a duty to defend amounted to an order determining the issue of liability in favor of a party seeking affirmative relief under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). The majority opinion concluded that such an order was not appealable under that subdivision of Rule 9.130. There was no claim that the order was appealable as an injunction under Rule 9.130(a)(3)(B).
As an aside, Rule 9.130(a)(3)(C)(iv) has been repealed effective January 1, 2001. Amendments to Florida Rules of Appellate Procedure, 25 Fla. L. Weekly S835, S836, S846 (Fla. Oct. 12, 2000).
2The parties are in agreement that Rule 9.110(n) does not apply here.
3Florida courts have not addressed this issue.
