42
Fla. L. Weekly D968cTop of Form

Declaratory
judgment — Insurance — Non-joinder of insurer in action against insured —
Trial court erred in denying motions to dismiss, for failure to comply with
statutory condition precedent, a complaint in which an injured party sought
declaration that liability policy issued by insurers covered the plaintiff’s
bodily injury claim against the insured and the plaintiff’s separate negligence
suit against the insured — Although trial court properly rejected plaintiff’s
argument that non-joinder statute did not apply because insurers were surplus
lines insurers, it erred in abating/staying the action pending plaintiff’s
compliance with statutory presuit requirements rather than granting insurers’
motions to dismiss

INTERNATIONAL SPECIAL EVENTS AND
RECREATION ASSOCIATION, INC., PRIME INSURANCE COMPANY AND CERTAIN UNDERWRITERS
AT LLOYD’S LONDON SUBSCRIBING TO POLICY NUMBER LAP0334, Petitioners, v. MATTHEW
BELLINA AND SURF SLIDE, LLC, Respondents. 5th District. Case No. 5D16-4021.
Opinion filed April 28, 2017. Petition for Certiorari Review of Order from the
Circuit Court for Brevard County, George B. Turner, Judge. Counsel: Erin M.
Raschke, Matthew L. Litsky, and Sarah B. Van Schoyck, of Phelps Dunbar LLP,
Tampa, and Elizabeth K. Russo, of Russo Appellate Firm, P.A., Miami and Green
& Ackerman, P.A., Boca Raton, for Petitioners. Robert P. Major, of Ver
Ploeg & Lumpkin, P.A., Orlando, for Respondent Matthew Bellina. No
appearance for other respondents.

(PALMER, J.) International Special
Events and Recreation Association, Inc. (ISERA), Prime Insurance Company
(Prime), and Certain Underwriters at Lloyd’s London Subscribing to Policy
Number LAP0334 (Underwriters) (collectively, Insurers), filed a petition
seeking a writ of certiorari quashing the disposition portion of the circuit
court’s order which addressed their respective motions to dismiss the complaint
for declaratory relief filed by Respondent, Matthew Bellina (Bellina). We grant
the petition and quash the disposition portion of the trial court’s order.

Bellina filed a personal injury lawsuit
against Surf Slide, contending that he was injured, in part, as a result of
Surf Slide’s negligence. While that suit was pending, Bellina filed a Complaint
for Declaratory Relief alleging, in pertinent part, that:

[a]s a
third party beneficiary under the [Insurance] Policy [issued by Insurers to
Surf Slide], Matthew Bellina is entitled to bring this action in this Court, to
obtain a judicial declaration resolving the question whether the [Insurance]
Policy issued by the [Insurers] to Surf Slide provides coverage to Surf Slide
for Matthew Bellina’s bodily injury claim and suit against Surf Slide.

The complaint acknowledged the
existence of Florida’s Nonjoinder Statute, section 627.4136, Florida Statutes
(2016), which provides, in pertinent part:

627.4136.
Nonjoinder of Insurers

(1) It
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.

(2) . . .
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 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.

However, the complaint averred that
section 627.4136 did not apply to the instant law suit because Insurers are
surplus lines insurers governed by section 626.913(4) of the Florida Statutes
(2016). That statute provides:

626.913
Surplus Lines Law; short title; purposes

. . . .

(4) Except
as may be specifically stated to apply to surplus lines insurers, the
provisions of chapter 627 do not apply to surplus lines insurance . . .

Insurers filed motions to dismiss
the complaint, arguing that Bellina had no right or standing to file a suit
raising insurance coverage issues given his failure to comply with the presuit
requirements of section 627.4136. Upon review, the trial court correctly held
that the language of section 627.4136 is sufficiently specific to apply to
actions brought against surplus lines insurers pursuant to section 626.913(4)
and, as such, Bellina must comply with the conditions precedent of section
627.4136(1) before he can pursue an action against Insurers. Yet, instead of
granting Insurers’ motions to dismiss, the court denied the motions and
abated/stayed Bellina’s action pending his compliance with section 627.4136(1).

Insurers filed a petition for writ
of certiorari, seeking to quash the disposition portion of the trial court’s
order, arguing that the disposition should have been dismissal. We agree.

Generally,
a party may not obtain a writ of certiorari to quash an order denying a motion
to dismiss. See Universal Sec. Ins. Co. v. Spreadbury, 524 So. 2d 1167,
1167 (Fla. 2d DCA 1988). But where an insurer asserts that the presuit
requirements of section 627.4136 have not been met, certiorari review is
appropriate. See id.; Cincinnati Ins. Co. v. Moffett, 513 So. 2d
1345, 1346 (Fla. 1st DCA 1987). We believe that the irreparable harm in such
cases arises from the fact that an insurer is being forced to litigate an
action brought by a third-party plaintiff which would be barred if, in fact,
the requirements of section 627.4136 have not been met.

S. Owners Ins. Co. v. Mathieu, 67 So. 3d 1156, 1157-58 (Fla. 2d DCA 2011).

Accordingly, we grant the petition
and remand this matter for the entry of a dismissal order.

Petition GRANTED; Trial Court Order
QUASHED in part; Cause REMANDED. (COHEN, C.J. and LAMBERT, J., concur.)

* * *