28 Fla. L. Weekly D2215a
Declaratory judgments — Dismissal — Trial court erred in granting motion to dismiss declaratory judgment action seeking declaration of coverage under insurance policy on ground that there was no coverage under the policy — Motion to dismiss a declaratory judgment action is not a motion on the merits, but is, rather, a motion only to determine whether there is an entitlement to a declaration of rights
ANGELA HAMILTON KEEN, Appellant, v. FLORIDA SHERIFFS’ SELF-INSURANCE FUND, Appellee. 4th District. Case No. 4D02-3857. Opinion filed September 24, 2003. Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Robert A. Hawley, Judge; L.T. Case No. 01-347 CA03. Counsel: Eric G. Belsky of Johnson, Leiter & Belsky, Fort Lauderdale and Eric H. Luckman of Eric H. Luckman, P.A., Boynton Beach, for appellant. Ellen C. Pappas and Ronald A. Mowrey of Mowrey & Biggins, P.A., Tallahassee, for appellee.
(PER CURIAM.) We reverse the order dismissing this action seeking a declaration of coverage under an insurance policy. The court made a decision on the merits that there was no coverage under the policy. This was error. “A motion to dismiss a complaint for declaratory judgment is not a motion on the merits. Rather, it is a motion only to determine whether the plaintiff is entitled to a declaration of its rights, not to whether it is entitled to a declaration in its favor.” Laganella v. Boca Grove Golf & Tennis Club, Inc., 690 So. 2d 705, 706 (Fla. 4th DCA 1997) (quoting Royal Selections, Inc. v. Fla. Dep’t of Revenue, 687 So. 2d 893 (Fla. 4th DCA 1997)).
Appellee relied heavily on Mason v. Florida Sheriffs’ Self-Insurance Fund, 699 So. 2d 268 (Fla. 5th DCA 1997), which construed the same policy language under very similar circumstances. However, Mason was not a declaratory judgment case and therefore is not applicable to this procedural matter, although it is relevant authority on the merits.
Reversed and remanded for further proceedings. (WARNER, MAY, JJ., and ARAMONY, SUSAN, Associate Judge, concur.)
