11 Fla. L. Weekly Supp. 890a

Insurance — Automobile — Action against insurer by insured who was involved in accident while driving neighbor’s vehicle, alleging insurer breached various requirements imposed upon insurer by statute and seeking specific performance based upon these alleged statutory violations — Appeals — Timeliness — Appeal filed more than five months after order granting insured’s motion to dismiss but within 30 days of actual dismissal of complaint was timely — Although insurer contended that dismissal should be affirmed because coverage for claim was excluded by policy provision, review of complaint and argument in trial court indicates that exclusion cited had no relevance to plaintiff’s claim and, in any event, trial court clearly ruled on motion without addressing coverage issue — Non-joinder statute not basis for upholding dismissal because statute, by its terms, applies only to third parties who are not insureds under the policy and does not apply to claim by insured predicated upon alleged breaches of statutory duties by the insurer under contract of insurance issued by it — No merit to insurer’s assertion that dismissal was appropriate because insured had not yet suffered actual monetary damages — Although at common law, there is no claim against insurer for breach of its contractual obligations absent money judgment against insured, in present litigation insured is asserting claim for breach of contract and specific performance based on insurer’s failure to conform to specific statutory requirements, and to deny insured the right to enforce the insurer’s obligations would be inconsistent with the policy behind these statutes — Error to grant motion to dismiss

HEATHER NEWMAN, Appellant, vs. STATE NATIONAL SPECIALTY INSURANCE COMPANY, Appellee. Circuit Court, 15th Judicial Circuit (Appellate-Civil) in and for Palm Beach County. Case No. 502002AP002665XXCTAY. August 5, 2004. Petition from the County Court in and for Palm Beach County, Judge Donald W. Hafele. Counsel: Julie H. Littky-Rubin, Lytal, Reiter, Clark, Fountain & Williams LLP, West Palm Beach; and Eric H. Luckman, Boynton Beach, for Appellant. Bryan W. Black, Peterson, Bernard, Vanderberg, Zei, Geisler & Martin, West Palm Beach, for Appellee.

(PER CURIAM.) On September 28, 2000, Heather Newman was involved in a motor vehicle accident while driving a vehicle owned by her neighbor, Samuel Young. Subsequent to the accident, Mr. Young made a claim against Ms. Newman for damage caused to his vehicle and for the loss of use of his vehicle. As a result, Ms. Newman notified her insurer, State National Specialty Insurance Company of this claim and requested that the Defendant assume its duty to adjust, handle and evaluate this claim. When the insurer failed to communicate with her about the claim or evaluate or adjust the claim, she brought suit against her insurer. Ms. Newman brought suit in three separate counts: (a) for breach of contract; (b) for specific performance of contract; and (c) for unfair insurance trade practices (i.e., bad faith). The Defendant insurer moved to dismiss and at hearing the Plaintiff’s counsel conceded that the claim for bad faith was premature and should be abated. Subsequently, the trial court granted the Defendant’s Motion to Dismiss on August 30, 2001. On September 7, 2001, the Plaintiff filed a Motion for Rehearing which was denied by the trial court October 16, 2001. A Final Order of Dismissal was entered January 29, 2002 and Notice of Appeal from this Final Order was filed February 28, 2002.

As a preliminary issue, the Defendant asserts that this appeal is not timely, since Plaintiffs’ Notice of Appeal was filed on February 28, more than five months after the. granting of the Motion to Dismiss and more than four months after denial of the Motion for Rehearing. The Order of August 30, 2001, however, merely granted the Defendant’s Motion to Dismiss with prejudice. Nowhere within the Order did the Trial Judge dismiss the Complaint. As such, an Order simply granting a Motion to Dismiss a Complaint with prejudice is not a final appealable order. See e.g., Scott v. Waste Management, Inc. of Florida, 537 So.2d 686, 687 (Fla. 4th DCA 1989). One decision cited by the Defendant, Diaz v. Metro-Dade Police Department, 557 So.2d 608, 609 (Fla. 1st DCA 1990) clearly draws this distinction between the granting of a Motion to Dismiss and actual dismissal of the Complaint. Since the Complaint was not dismissed until January 29, 2002 and the Notice of Appeal was filed February 28, 2002, the appeal was timely.

As to the substantive issues on appeal, it is axiomatic that a motion to dismiss tests whether the Plaintiff has stated a cause of action. See e.g., Bell v. Indian River Memorial Hospital, 778 So.2d 1030, 1032 (Fla. 4th DCA 2001). As a result, a ruling on a motion to dismiss for failure to state a cause of action is an issue of law and is reviewable by this Court by the de novo standard of review. Id. In reviewing the merits of the dismissal, however, our consideration is limited to the four corners of the Complaint and those allegations must be accepted as true and considered in the light most favorable to the non-moving party. Id.

The Complaint alleges that the Defendant insurer issued a policy of automobile insurance to the Plaintiff, Heather Newman, which was in full force at the time of the automobile accident of September 28, 2000, which policy included liability coverage. At the time of this accident, the Plaintiff’s automobile was inoperable and she was operating an automobile owned by her neighbor, Samuel Young. Mr. Young had previously given Ms. Newman permission and consent to use his vehicle. As a result of the accident, Mr. Young presented a claim against the Defendant’s insured, Ms. Newman, and demanded that she pay for the damage caused his vehicle and for the loss of use of the vehicle. The Plaintiff notified her insurer of Mr. Young’s claim and requested that the Defendant assume its duty to adjust, handle and evaluate Mr. Young’s claim. The insurance company allegedly failed and refused to provide the Plaintiff’s or her representatives with a copy of the applicable policy, failed and refused to communicate with the Plaintiff or her representatives with respect to the claims made against her, failed and refused to provide coverage for the Plaintiff for the accident and has otherwise failed or refused to properly handle, evaluate and adjust the claims made against the Plaintiff for the accident.

In Count I of her Complaint entitled Breach of Contract, the Plaintiff alleges specific statutory violations by the insurer. It is alleged that the Defendant failed to mail or deliver a copy of the insurance policy to the Plaintiff in violation of Florida Statute 627.421(b); failed to provide the specific written information as required by Florida Statute 627.4137; failed to implement standards of proper investigation required by Florida Statute 626.9541(1)(i)(3)(a); failed to acknowledge and act promptly upon communications with respect to claims required by Florida Statute 626.9541(1)(i)(3)(c); failed to conduct reasonable investigation of claims made by or against the Plaintiff as required by Florida Statute 626.9541(i)(3)(d); failed to affirm or deny full or partial coverage of the claim as required by Florida Statute 626.9541(1)(i)(3)(e); and failed to properly notify the Plaintiff of any additional information necessary for processing the claims as required by Florida Statute 626.9541(i)(3)(g). As a result, the Plaintiff claims damages in that she has become indebted to Samuel Young for damage to his vehicle and loss of use. Count II of Plaintiff’s Complaint sets forth a claim for specific performance based upon the same alleged statutory violations.

First, the insurer contends that the lower court order should be affirmed since there was “no coverage” for the Plaintiff’s claim under the policy because of Exclusion No. 8 under Part D of the policy (“Coverage for Damage to Your Auto”). A review of the Complaint and the argument in the trial court below indicates that the Plaintiff’s claim was not under Part D of the policy regarding Coverage for Damage to Your Auto but under the property damage liability portion of the policy, Part A, to which the exclusion cited has no relevance. In addition, it is clear that the trial court did not rule on the issue of coverage. Generally, appellate courts cannot rule for the first time on the merits of the case when the trial court has not so ruled. See e.g., Sierra v. Public Health Trust of Dade County, 661 So.2d 1296, 1299 (Fla. 3rd DCA 1995). The trial judge specifically stated in his Final Order that “coverage was not an issue”. Therefore, the trial court ruled on the motion without ever considering addressing the coverage issue.¹

The insurer also contends that the lower court order should be affirmed based upon the non-joinder statute, Florida Statute 627.4136. Although the lower court’s order does not explicitly state that its dismissal of the Plaintiff’s claim was premised upon the non-joinder statute, the court’s citation of Lucente v. State Farm Mutual Automobile Ins. Co., 591 So.2d 1126 (Fla. 4th DCA 1992), rev. denied, 601 So.2d 552 (Fla. 1992) suggests this as a possible basis. Florida Statute 627.4136 provides in pertinent part as follows:

(1) It should be a condition precedent to the accrual of maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a judgment against the person who is an insured under the terms of such policy for cause of action which is covered by such policy.

(2) Notwithstanding subsection (i) . . . No person who is not an insured under the terms of a liability insurance policy shall have any interest in such policy either as a third party beneficiary or otherwise, prior to first obtaining a judgment against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy. [Emphasis added.]

The non-joinder statute by its terms, therefore, applies only to persons who are not insureds under the policy. The current claim is by the insured predicated upon alleged breaches of statutory duties by the insurer under the contract of insurance issued by it. Lucente merely held that there was no cause of action for a “third party” under Section 627.7264 because that statute must be read together with 627.7262 requiring a “third party” to obtain a judgment against the insurer prior to suit. Thus, the Plaintiff being an insured under the policy, Florida Statute 627.7262 would not bar her claim.

Interwoven with its argument under the non-joinder statute, the insurer also asserts that the dismissal was appropriate because the insured has not yet suffered actual monetary damages. At common law, there is no claim against the insurer for breach of its contractual obligations absent money judgment against the insured. See e.g., Shuster v. South Broward Hospital District Physicians’ Professional Liability Insurance Trust, 570 So.2d 1362, 1368 (Fla. 4th DCA 1990); see also, Time Insurance Company, Inc. v. Burger, 712 So.2d 389, 392 (Fla. 1998) [recognizing that prior to the enactment of 624.155 damages recoverable against an insurance carrier were limited to actual breach of contract damages]. In the present litigation, however, Ms. Newman does not assert a common law claim but asserts a claim against her insurer for breach of contract and specific performance for failure to conform to specific statutory requirements. For example, Ms. Newman claims that the insurer failed to provide her a copy of her policy as required by Florida Statute 627.421 and failed to provide information as required by Florida Statute 627.4137. Florida courts have acknowledged the importance of these statutes and the insurer’s compliance to provide insureds with appropriate information. See e.g., ZC Insurance Company v. Brooks, 847 So.2d 547 (Fla. 4th DCA 2003); Schlosser v. Perez, 832 So.2d 179, 183 (Fla. 2nd DCA 2002).

While Section 627.421 and Section 627.4137 do not contain explicit language which provides for a cause of action for breach, courts have held other statutes under Chapter 627 provide a cause of action although not specified by statute. For example, in Stinson v. United Automobile Insurance Co., 734 So.2d 505 (Fla. 3rd DCA 1999), the Court reversed dismissal of the Plaintiff’s claim under Section 627.7282. Also, in Fabracant v. Sears & Roebuck, 1999 WL 1486830 (S.D. Fla.), the Court reversed an Order from the trial court which dismissed a claim under Florida Statute 627.679 on the basis that it did not provide for a private cause of action.

Under Florida Statute 627.421 and 627.4137, the Florida Legislature has seen fit to impose specific obligations upon insurers and the courts have acknowledged their importance. At least as to these statutes, to deny the insured the right to enforce the insurer’s obligations would be inconsistent with the policy behind these statutes. Cf. Lucente, supra. Moreover, the Plaintiff did allege that she was damaged as a result of the insurer’s actions by becoming “indebted” to the owner of the vehicle.

Considering the above, the Defendants did not meet their burden of dismissal at trial court as they failed to demonstrate that the Complaint fails to state a cause of action. Therefore, this cause is REVERSED and REMANDED for further proceedings consistent with this opinion. (CROW, WINIKOFF and BLANC, JJ., concur.)

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¹It should be noted that subsequently, the Defendant acknowledged coverage existed under the policy. See, Defendant/Appellee’s Response to Appellant’s Request (Motion) for Judicial Notice.

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