4 Fla. L. Weekly Supp. 862a
Insurance — Disability — Insured’s action against insurer for accrued benefits — Insurer’s motion for stay of state court action pending resolution of previously filed declaratory judgment action which had been removed to federal court is denied — In interest of justice, case should not be stayed where there is no prospect of early resolution of federal court case and insured will suffer substantial prejudice if he is indeed disabled and entitled to disability benefits under the policy — Denial of motion is without prejudice to renewal of motion should issue of repudiation of policies be revisited in federal case or if it is established, through discovery in instant case, that repudiation in fact occurred
WILLIAM E. DUNLAP, Plaintiff, vs. NEW YORK LIFE INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 97-2292-CO-42. July 21, 1997. Stephen O. Rushing, Judge.
ORDER DENYING DEFENDANT’S MOTION FOR STAY
THIS CAUSE having come on to be heard before this Court on July 16, 1997 upon Defendant’s Motion for a Stay, and the Court having heard argument of counsel and otherwise being fully advised in the premises, and rules as follows:
On November 5, 1996, Plaintiff filed suit in County Court in and for Pinellas County, Florida seeking a declaration that Defendant had wrongfully terminated disability benefits under a policy of disability income insurance issued by Defendant. When this suit was filed no benefits were overdue.
On November 22, 1996, Defendant removed the case to Federal Court claiming the amount in controversy exceeded the Federal Court jurisdictional threshold of $50,000.
The disability policies at issue provide for a total monthly benefit of $3,080.00. On April 1, 1997, Plaintiff filed the instant case in County Court claiming entitlement to six months’ of accrued benefits totalling $14,280.00. Defendant thereafter moved for a stay of this second case upon the grounds of comity, citing the court to cases holding that, under normal circumstances, a State Court case should be stayed pending resolution of a prior filed Federal Court case involving the same parties and subject matter.
Plaintiff apprised the court of the fact that there has been virtually no movement forward in the Federal Case since its removal in November 1996 and that a pre-trial conference in that case was scheduled for August 1998 at the earliest. Plaintiff argued that this Court has the discretion to deny a stay under circumstances where there is no prospect of an early disposition of the Federal action.
The court finds that, if Plaintiff is indeed disabled and entitled to disability benefits under the policy he will suffer substantial prejudice if this State Court action is stayed.
In addition, upon the assertion of Plaintiff’s counsel, it appears that the earlier case may have been improvidently removed to Federal Court in that the insurance policies may not have been repudiated by Defendant.
The court finds that there is no prospect of an early resolution of the Federal Court case and, in the interest of justice, this case should not be stayed.
This order denying Defendant’s motion is without prejudice and Defendant may bring a renewed motion should the issue of repudiation of the policies be revisited in the Federal Case or, if it is established that a repudiation in fact occurred, through discovery in this case. It is therefore
ORDERED AND ADJUDGED that Defendant’s Motion for Stay is denied. That Defendant shall have fifteen (15) days from the entry of this order within which to respond to Plaintiff’s complaint.
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