8 Fla. L. Weekly Supp. 637b
Insurance — Nonjoinder of insurer in action against insured — Counterclaim against insurer asserting coverage issues which are totally unrelated to any other claims in the action is dismissed
DELANEY CONTRACTING CORPORATION, a Florida corporation, Plaintiff, vs. BENKO CONSTRUCTION CO., INC., a Florida corporation; and TOWNE DEVELOPMENT OF POMPANO BEACH, INC., and ELADA PROPERTIES, INC., Florida corporations jointly d/b/a ELADA-TOWNE JOINT VENTURE, Defendants. BENKO CONSTRUCTION CO., INC., a Florida corporation; and TOWNE DEVELOPMENT OF POMPANO BEACH, INC., and ELADA PROPERTIES, INC., Florida corporations jointly d/b/a ELADA-TOWNE JOINT VENTURE, Counterplaintiffs, vs. DELANEY CONTRACTING CORPORATION, a Florida corporation, Counterdefendant. BENKO CONSTRUCTION CO., INC., a Florida corporation; and TOWNE DEVELOPMENT OF POMPANO BEACH, INC., and ELADA PROPERTIES, INC., Florida corporations jointly d/b/a ELADA-TOWNE JOINT VENTURE, Counterplaintiffs, vs. ZURICH AMERICAN INSURANCE, a foreign insurance company; GREAT AMERICAN INSURANCE COMPANY, a foreign insurance company; UNIVERSAL ALUMINUM WINDOWS AND DOORS, INC., a Florida corporation; HARTFORD INSURANCE COMPANY, a foreign insurance company; and CONSOLIDATED PROPERTY & CASUALTY INSURANCE COMPANY, a Florida corporation, Counterdefendants. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 00-010469 (09). July 16, 2001. Robert Lance Andrews, Judge.ORDER
THIS CAUSE having come before the Court upon Counterdefendants’, Zurich American Insurance, Great American Insurance Company, Hartford Insurance Company (Hartford), and Consolidated Property & Casualty Insurance Company (Consolidated), Motions to Dismiss, and the Court having considered same, having read argument of counsel, and being otherwise duly advised in premises, finds and decides as follows:
Defendants/Counterplaintiffs, Benko Construction Co., Inc. and Towne Development of Pompano Beach, Inc. and Elada Properties, Inc. (Benko and Elada-Towne), filed a counterclaim against Counterdefendants asserting claims for breach of contract. This claim arises out of a dispute between Benko and Elada-Towne and the original Plaintiff/Counterdefendant, Delaney Contracting Corporation (Delaney). According to Benko and Elada-Towne, they were to be named as additional insureds in any insurance policy obtained by Delaney1. The counterclaim alleges that Counterdefendants refused to provide insurance coverage to Benko and Elada-Towne as required by the insurance contracts in which Benko and Elada-Towne were named as additional insureds.
In the Motions to Dismiss Counterdefendants argue that this counterclaim is barred by the non-joinder of insurers statute2. Florida. Stat. Sec. 627.4136(1) requires that
[i]t shall be a condition precedent to the accrual or 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 settlement or verdict 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)
Counterdefendants argue that in order to bring an action against them, Benko and Elada-Towne must first obtain a judgment against the insured, Delaney. While this statute is not directly on point, since it appears Benko and Elada-Towne were named as additional insureds, this court finds that the reasoning behind this statute speaks directly to the matter at issue in this case.
The Fifth district, in State Farm Fire and Cas. Co. v. Nail, 516 So. 2d 1022 (Fla. 5th DCA 1987) has expounded on the public policy underlying this statute. The court explained that the policy behind Fla. Stat. Sec. 627.4136(1) was that “insurance coverage should have no bearing on juror determination of the issues of liability and damages.” Id. In Nail the defendant argued that a negligence action should be joined with a declaratory judgment action regarding insurance coverage. The defendant argued that the concerns of judicial economy necessitated consolidating the two actions since the actions arose out of many of the same facts. The court recognized that judicial economy was a valid concern, but found that “[t]he legislature, in enacting the non-joinder statute, [had] apparently found that those concerns do not overcome the danger that jurors may be influenced if they know the defendant has liability coverage.” Id.
The validity of Nail has been recognized in Merch. and Businessmen’s Mut. Ins. Co. v. Bennis, 636 So. 2d 593 (Fla. 4th DCA 1994). In Bennis the court acknowledged that the “public policy against disclosure of insurance coverage to the jury underlies the non-joinder statute.” Id. Moreover, the court recognized that “[t]his policy was the basis for the fifth district’s holding in Nail.” Id. Using the rationale found in Nail, the court in Bennis held that a tort action against the insured and a policy coverage action were “essentially unrelated” and constituted “separate and distinct legal actions.” Id. As a result of this finding the court held that “[t]here is no reason for them to be tried together. Trying the coverage issues with the liability and damages claims defeats the purpose and policy of the non-joinder statute.” Id.
In this case, much like in Bennis, Benko and Elada-Towne seek to try a coverage action along with a totally unrelated action. Therefore, this court must grant Counterdefendants’ Motions to Dismiss. Since this court is dismissing the counterclaim, as to the named Counterdefendants, based upon the fact that the coverage action is totally unrelated to any other claims in this action, this court need not address the other issues raised by the Counterdefendants in their Motions to Dismiss.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Counterdefendants’, Zurich American Insurance, Great American Insurance Company, Hartford Insurance Company, and Consolidated Property & Casualty Insurance Company, Motions to Dismiss are GRANTED.
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1The counterclaim against Counterdefendants Hartford and Consolidated alleges that Benko and Elada-Towne were to be listed as additional insureds in a policy obtained by another Counterdefendant, Universal Aluminum Windows and Doors, Inc. (Universal Windows) and not by Delaney. Universal Windows has not yet filed a Motion to Dismiss and is consequently not a party to this order. However, Hartford’s and Consolidated’s Motions to Dismiss will properly be addressed in this order since the applicable statute applies equally to them.
2Consolidated fails to specifically allege that the counterclaim is barred by the non-joinder statute. However, this court is still able to glean from Consolidated’s inartfully and ambiguously drafted Motion, that Consolidated is arguing that Universal Windows is not an insured under a policy issued by Consolidated. Therefore, the Motion by Consolidated is also governed by the non-joinder statute and will be addressed here.
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