Mid-Continent Casualty Co. v. Flora-Tech Plantscapes, Inc.

Third District Court of Appeal
State of Florida
Opinion filed July 26, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1260
Lower Tribunal No. 14-4189
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Mid-Continent Casualty Company,
Appellant,
vs.
Flora-Tech Plantscapes, Inc.,
Appellee.
An appeal from a non-final order from the Circuit Court for Miami-Dade
County, Michael A. Hanzman, Judge.
Hinshaw & Culbertson LLP, and James H. Wyman and Ronald L. Kammer,
for appellant.
Alvarez, Carbonell, Feltman & DaSilva, PL, and Paul B. Feltman and
Bryant Paris, for appellee, Flora-Tech Plantscapes, Inc.
Before, ROTHENBERG, C.J., and SUAREZ and LAGOA, JJ.
LAGOA, J.
Mid-Continent Casualty Company (“MCC”) appeals from the trial court’s
order granting Flora-Tech Plantscapes, Inc.’s (“Flora-Tech”) motion for summary
judgment to the extent it declares that MCC has a “duty to defend” Flora-Tech
against claims brought by Coastal Construction of Miami-Dade, Inc. (“Coastal”)
and The Palace Management Group, LLC (“Palace”). Because the order is a non-
final, non-appealable order, we dismiss MCC’s appeal for lack of jurisdiction.
I. FACTUAL AND PROCEDURAL HISTORY
This action began as a personal injury litigation against, inter alia, Coastal
and Palace. After Flora-Tech was brought in as a third-party defendant, Flora-
Tech filed a fourth-party complaint against MCC, its insurer, under a commercial
general liability policy (the “Policy”) for declaratory relief seeking a “judicial
declaration that MCC must defend and indemnify” Flora-Tech for claims asserted
against it by Coastal and Palace. MCC, in turn, filed an amended counterclaim
against Flora-Tech and a crossclaim against both Coastal and Palace for
declaratory relief asserting that it had no duty to defend and, therefore, no duty to
indemnify Flora-Tech for Coastal’s Third-Party Complaint and Palace’s Amended
Crossclaim.
Flora-Tech and MCC filed cross motions for summary judgment and, after a
hearing, the trial court entered a comprehensive order (the “Order”) denying
MCC’s motion and granting Flora-Tech’s motion “to the extent it seeks a
declaration finding that [MCC] has a ‘duty to defend’ it against the claims asserted
by Coastal and Palace.” The trial court, however, specifically found that it was not
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deciding “[t]he question of whether [MCC] has a duty to indemnify Flora-Tech
against any damages ultimately awarded.” This appeal ensued.1 Upon reviewing
the Order on appeal, this Court sua sponte issued an order asking the parties why
this appeal should not be dismissed for lack of jurisdiction.
II. ANALYSIS
At the outset, we note that the order does not constitute an appealable final
order. See Ball v. Genesis Outsourcing Solutions, LLC. 174 So. 3d 498, 499 (Fla.
3d DCA 2015) (“An order that merely grants a motion for summary judgment is
not a final order.”); Lidsky Vaccaro & Montes, P.A., v. Morejon, 813 So. 2d 146,
149 (Fla. 3d DCA 2002) (“[A]n order which merely grants a motion for summary
judgment and does not otherwise contain the traditional words of finality is not a
final order subject to appellate review.”). The trial court’s Order merely grants
summary judgment in favor of Flora-Tech “to the extent it seeks a declaration
finding that [MCC] has a ‘duty to defend’ it against claims asserted by Coastal and
Palace,” and it does not enter judgment. “An order granting only summary
judgment merely establishes an entitlement to judgment, but is not itself a
judgment.” Lidsky, 813 So. 2d at 149. Because the order appealed from does not
enter judgment, it is not an appealable final order.2
1 After the appeal was filed, MCC filed a Notice of Voluntary Dismissal advising
the Court that MCC, Coastal and Palace had reached a settlement and MCC had
dismissed its claims against Coastal and Palace. As such, only Flora-Tech remains
as an Appellee in this matter.
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MCC concedes as much, and instead argues that this Court has jurisdiction
to entertain this appeal pursuant to Florida Rule of Appellate Procedure
9.130(a)(3)(B). MCC asserts that an order finding a duty to defend falls into that
category of non-final orders that “grant, continue, modify, deny, or dissolve
injunctions, or refuse to modify or dissolve injunctions.” Fla. R. App. P.
2 This Court considered other possible grounds for jurisdiction and concluded that
this Court lacks jurisdiction under those avenues as well. Pursuant to Florida Rule
of Appellate Procedure 9.110(k), a partial final judgment is appealable if it “is one
that disposes of a separate and distinct cause of action that is not interdependent
with other pleaded claims.” Because the indemnification issue remained pending
below at the time the Order was entered, the Order cannot be characterized as a
“partial final judgment.” See Florida Farm Bureau Gen. Ins. Co. v. Peacock’s
Excavating Serv., Inc., 186 So. 3d 6 (Fla. 2d DCA 2015) (holding that partial final
judgment which determined only duty to defend but not duty of indemnification
not an appealable order); Nationwide Mut. Ins. Co. v. Harrick, 763 So. 2d 1133(Fla. 4th DCA 1999) (holding order determining only duty to defend not
appealable under Rule 9.110).
The Court also considered Rule 9.110(m), which provides for an appeal of
“[j]udgments that determine the existence or nonexistence of insurance coverage in
cases in which a claim has been made against an insured and coverage thereof is
disputed by the insurer may be reviewed either by the method prescribed in this
rule or that in rule 9.130.” We conclude that the Order is not appealable under
Rule 9.110(m) because that provision, by its terms, does not apply here as the
Order is neither a “judgment” nor does it determine the issue of coverage (only the
duty to defend). See National Assurance Underwriters, Inc., v. Kelley, 702 So. 2d
614, 615 (Fla. 4th DCA 1997) (This “rule, by its clear and unambiguous terms, is
limited to ‘judgments.’”). Additionally, Rule 9.110(m) has been held not to create
jurisdiction. Universal Underwriters Ins. Co. v. Stathopoulos, 113 So. 3d 957, 959
(Fla. 2d DCA 2013); Centennial Ins. Co. v. Life Bank, 953 So. 2d 1, 4 (Fla. 2d
DCA 2006) (concluding that “the purpose of rule 9.110(m) is simply to provide a
more expeditious procedure for appeal of judgments deciding coverage disputes
when a claim has been made against an insured. It does not expand the district
courts’ jurisdiction to entertain appeals of non-final orders. That being the case,
the rule is purely procedural.”).
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9.130(a)(3)(B). Because the Order does not on its face “grant, continue, modify,
deny, or dissolve injunctions, or refuse to modify or dissolve injunctions,” MCC
argues that, as a practical matter, the Order should be construed as one that grants
an injunction. In support, MCC relies upon Allstate Insurance Co. v. Arvida Corp.,
421 So. 2d 741 (Fla. 4th DCA 1982).
In Arvida, the insured cross-claimed against its insurer for coverage
defending the suit against the insured. Id. at 742. On a motion for summary
judgment on the insurance claim, the Fourth District Court of Appeal noted that the
trial court, in “a curious order . . . proceeded to rule that ‘from the date of this
Order hence, [the insurer] shall assume the defense of this matter.” Id. (emphasis
added). As a result of the trial court’s specific language, the Fourth District Court
of Appeal held that it had jurisdiction to entertain the appeal as the order was
appealable as a final judgment granting specific performance, as a non-final order
granting an injunction, or as an order determining liability in favor of a party
seeking affirmative relief. Id. at 742-43.
MCC argues that “[b]y finding that MCC had a duty to defend Flora-Tech,
the trial court’s order here did no less” than the order in Arvida. We find,
however, that the Order at issue here is distinguishable from the order in Arvida.
Unlike the order in Arvida, the Order here contains no such command or directive
to MCC to defend Flora-Tech in the underlying litigation. At most, the Order
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merely declares that MCC “has a ‘duty to defend’ [Flora-Tech] against the claims
asserted by Coastal and Palace.” While, as a practical matter, many insurers may
choose to defend their insured after such a judicial declaration, the trial court’s
determination that MCC has a contractual duty to defend in no way constitutes an
injunction commanding an act to be done or prohibiting their commission.
MCC admits that no Florida case other than Arvida has determined that an
order declaring that the insurer has a duty to defend is appealable under Rule
9.130(a)(3)(B). As such, MCC asks this Court to also consider federal law,
arguing that several federal courts “have found [appellate] jurisdiction to review
nonfinal orders determining an insurer’s duty to defend” under 28 U.S.C. §
1292(a)(1). We find MCC’s arguments unpersuasive as, in each of the federal
cases cited by MCC, the appeals were taken from orders compelling the insurer to
defend. We therefore find that those cases are distinguishable for the same reason
as Arvida, supra. See Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 669 (3d
Cir. 2016) (“[P]rospectively, Westfield shall provide defense to Ramara in the
underlying action . . . .”); Church Mut. Ins. Co. v. Ma’Afu, 657 F. App’x. 747, 751
(10th Cir. 2016) (“[T]he court ordered Church Mutual to defend Mr. Ma'Afu . . .
.”); W Holding Co., v. AIG Ins. Co.-Puerto Rico, 748 F.3d 377, 378 (1st Cir. 2014)
(concluding that “order requiring Chartis Insurance Company to advance defense
costs” constituted an injunction); Abercrombie & Fitch Co. v. Fed. Ins. Co., 370 F.
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App’x. 563, 566 n.6 (6th Cir. 2010) (“Federal is hereby ORDERED to advance
payment for the following categories of costs . . . .”); Nat'l Union Fire Ins. Co. of
Pittsburgh, Pa. v. Sahlen, 999 F.2d 1532, 1535 (11th Cir. 1993) (“National Union
was required to pay the Insureds' defense costs in the underlying suits until its
claim for rescission was resolved.”); Gon v. First State Ins. Co., 871 F.2d 863, 866
(9th Cir. 1989) (noting that “original order direct[ing] First State to pay defense
expenses in the FSLIC litigation as they were incurred . . . . met the general
definition of an injunction”).
Moreover, we find persuasive the opinions from our sister courts, which
held, although for other reasons, that a summary judgment order merely construing
a duty to defend under an insurance policy is not an appealable order. The Fourth
District Court of Appeal in Nationwide Mutual Insurance. Co. v. Harrick, 763 So.
2d 1133 (Fla. 4th DCA 1999), a case decided after its own Arvida decision,
dismissed the appeal and held that the trial court’s order determining that the
insurer had a duty to defend but denying the insured’s motion as to coverage was
not an appealable order. Id. at 1134. Significantly, in Nationwide, the Fourth
District Court of Appeal made no mention of its Arvida decision.
Additionally, the Second District Court of Appeal in Florida Farm Bureau
General Insurance Co. v. Peacock’s Excavating Service, Inc., 186 So. 3d 6, 10
(Fla. 2d DCA 2015), dismissed an appeal and held that an order granting summary
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judgment in the insured’s favor finding that the insurer had a duty to defend but
not ruling on the duty to indemnify was not an appealable order under Rule 9.130.
Id.As our sister court stated in Florida Farm Bureau, “we recognize that the
duty to defend poses a unique and critical issue in many insurance disputes and
may well be the most pressing concern in a coverage claim . . . . But we cannot
create jurisdiction for the sake of expediency.” This Court’s jurisdiction to review
non-final orders is limited to those matters specifically enumerated in Florida Rule
of Appellate Procedure 9.130, and the order on appeal does not fall within any of
those enumerated categories. This Court is not at liberty to assume jurisdiction
which has not been conferred upon it.
III. CONCLUSION
Because the order at issue merely grants summary judgment but does not
enter judgment, we find that the order appealed from is a non-final, non-appealable
order. Moreover, we find that the trial court’s order granting Flora-Tech’s motion
for summary judgment “to the extent it seeks a declaration finding that [MCC] has
a ‘duty to defend’ it against the claims asserted by Coastal and Palace” does not
constitute an injunction pursuant to Rule 9.130(a)(3)(B). We therefore dismiss the
appeal for lack of jurisdiction.
Appeal dismissed.
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