Cosmopolitan Mutual Insurance v. Wilson

CARROLL, CHAS., Judge.

This appeal is from a garnishment judgment against a liability indemnity insurer, after judgment in a negligence action had been rendered against the insured for an amount in excess of the policy limits, and which tort judgment had been appealed but not superseded.

The policy involved contained the following no-action clause:

“No action shall lie against the company * * * until the amount of the insurer’s obligation to pay shall have been finally determined either by judgment against the assured after actual trial or by a written agreement of the assured, the claimant and the company.”

The contention made by the appellant that under the no-action clause of the policy a judgment in garnishment could not be entered while the tort judgment was pending on appeal, is held to be without merit on authority of the case of General Accident Fire & Life Assurance Corporation v. Harris, Fla.App.1960, 117 So.2d 44, in which the District Court of Appeal, First District, considered this precise question with reference to a similarly worded no-action clause, and held that the tort judgment was final, within the meaning of such no-action clause, when rendered by the trial court without need to wait out the period for appeal or await the outcome of an appeal if taken.

Affirmed.

HORTON, C. J., and PEARSON, J., concur.