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Fla. L. Weekly D464cTop of Form
Fla. L. Weekly D464cTop of Form
Insurance
— Joinder of insurer in judgment against insured — Judgment creditor’s motion
to join judgment debtor’s commercial general liability insurer as party to
judgment was untimely where motion was not filed at time of final judgment or
within the following fifteen days allowed for a motion for rehearing — Trial
court departed from essential requirements of law by joining insurer to
judgment that was already rendered — Insurer was irreparably harmed because it
was made responsible for coverage without having been given opportunity to
raise defenses to entitlement to or amount of coverage — Court’s holding is
without prejudice to filing separate action against insurer seeking declaratory
judgment for determination as to coverage
— Joinder of insurer in judgment against insured — Judgment creditor’s motion
to join judgment debtor’s commercial general liability insurer as party to
judgment was untimely where motion was not filed at time of final judgment or
within the following fifteen days allowed for a motion for rehearing — Trial
court departed from essential requirements of law by joining insurer to
judgment that was already rendered — Insurer was irreparably harmed because it
was made responsible for coverage without having been given opportunity to
raise defenses to entitlement to or amount of coverage — Court’s holding is
without prejudice to filing separate action against insurer seeking declaratory
judgment for determination as to coverage
NOVA
CASUALTY COMPANY, Petitioners, v. WILSON DEVELOPERS, LLC, a Florida limited
liability company; SOUND CONSTRUCTION GROUP, INC., a Florida corporation;
ARCHITECTONICS STUDIO, INC., a Florida corporation; TRAE STOKES CONSTRUCTION
SERVICES, INC., d/b/a CONSTRUCTION SERVICES, INC., a dissolved Florida
corporation; C & O FRAMING AND CONSTRUCTION, INC., a dissolved Florida
corporation; C.Q. INSULATION, INC., a Florida corporation; DANIEL INSULATION,
INC., n/k/a THOMAS D., INC., a Florida corporation; GYPSUM PRODUCTS, INC., a
dissolved Florida corporation; and STEEL STUD ENTERPRISES, INC., a Florida
Corporation, Respondents. 2nd District. Case No. 2D15-5395. Opinion filed
February 22, 2017. Petition for Writ of Certiorari to the Circuit Court for
Pinellas County; Bruce Boyer, Judge. Counsel: Jerry McKim of Wyland &
Tadros LLP, West Palm Beach, for Petitioner Nova Casualty Company. Ty G.
Thompson of Mills Paskert Divers, Tampa, for Respondent Sound Construction
Group, Inc. No appearance for remaining Respondents.
CASUALTY COMPANY, Petitioners, v. WILSON DEVELOPERS, LLC, a Florida limited
liability company; SOUND CONSTRUCTION GROUP, INC., a Florida corporation;
ARCHITECTONICS STUDIO, INC., a Florida corporation; TRAE STOKES CONSTRUCTION
SERVICES, INC., d/b/a CONSTRUCTION SERVICES, INC., a dissolved Florida
corporation; C & O FRAMING AND CONSTRUCTION, INC., a dissolved Florida
corporation; C.Q. INSULATION, INC., a Florida corporation; DANIEL INSULATION,
INC., n/k/a THOMAS D., INC., a Florida corporation; GYPSUM PRODUCTS, INC., a
dissolved Florida corporation; and STEEL STUD ENTERPRISES, INC., a Florida
Corporation, Respondents. 2nd District. Case No. 2D15-5395. Opinion filed
February 22, 2017. Petition for Writ of Certiorari to the Circuit Court for
Pinellas County; Bruce Boyer, Judge. Counsel: Jerry McKim of Wyland &
Tadros LLP, West Palm Beach, for Petitioner Nova Casualty Company. Ty G.
Thompson of Mills Paskert Divers, Tampa, for Respondent Sound Construction
Group, Inc. No appearance for remaining Respondents.
(KELLY,
Judge.) Nova Casualty Company seeks certiorari review of a nonfinal order
adding it as a party to a final judgment. We grant Nova’s petition and quash
the order.
Judge.) Nova Casualty Company seeks certiorari review of a nonfinal order
adding it as a party to a final judgment. We grant Nova’s petition and quash
the order.
Wilson
Developers, LLC, filed suit against Sound Construction Group, Inc. (Sound), for
defective construction of a condominium. Sound filed a third-party complaint
against certain subcontractors, including Steel Stud Enterprises, Inc. Steel
Stud failed to respond to the complaint and a default judgment was entered
against it on August 4, 2014. On October 29, 2014, Sound moved to initiate
proceedings supplementary and sought to implead Nova Casualty Company, Steel
Stud’s commercial general liability insurer, and to join Nova as a party. The
trial court granted Sound’s motion, impleaded Nova as Steel Stud’s insurer and
joined Nova in the final judgment. Nova filed a motion for rehearing, which the
trial court denied.
Developers, LLC, filed suit against Sound Construction Group, Inc. (Sound), for
defective construction of a condominium. Sound filed a third-party complaint
against certain subcontractors, including Steel Stud Enterprises, Inc. Steel
Stud failed to respond to the complaint and a default judgment was entered
against it on August 4, 2014. On October 29, 2014, Sound moved to initiate
proceedings supplementary and sought to implead Nova Casualty Company, Steel
Stud’s commercial general liability insurer, and to join Nova as a party. The
trial court granted Sound’s motion, impleaded Nova as Steel Stud’s insurer and
joined Nova in the final judgment. Nova filed a motion for rehearing, which the
trial court denied.
In
its petition, Nova argues that joinder was improper because Sound failed to
meet the requirements of section 627.4136(4), Florida Statutes (2014). That
section states, in pertinent part, as follows:
its petition, Nova argues that joinder was improper because Sound failed to
meet the requirements of section 627.4136(4), Florida Statutes (2014). That
section states, in pertinent part, as follows:
At the time a judgment is
entered or a settlement is reached during the pendency of litigation, a
liability insurer may be joined as a party defendant for the purposes of
entering final judgment or enforcing the settlement by the motion of any party,
unless the insurer denied coverage under the provisions of s. 627.426(2) or
defended under a reservation of rights pursuant to s. 627.426(2).
entered or a settlement is reached during the pendency of litigation, a
liability insurer may be joined as a party defendant for the purposes of
entering final judgment or enforcing the settlement by the motion of any party,
unless the insurer denied coverage under the provisions of s. 627.426(2) or
defended under a reservation of rights pursuant to s. 627.426(2).
Under
the statute, a motion to add an insurer must be made prior to, or at the time
of, entry of judgment against the defendant. ACE Am. Ins. Co. v. HCP III of
Bradenton, Inc., 913 So. 2d 1280, 1281 (Fla. 2d DCA 2005) (noting that
under the statute, “a liability carrier may be joined at or before the time
judgment is entered against its insured”). “Such a motion could also be
entertained if made within the time for a motion for rehearing under Florida
Rule of Civil Procedure 1.530.” C.A. Seguros Catatumbo v. Herrera, 812
So. 2d 576, 577 (Fla. 3d DCA 2002).
the statute, a motion to add an insurer must be made prior to, or at the time
of, entry of judgment against the defendant. ACE Am. Ins. Co. v. HCP III of
Bradenton, Inc., 913 So. 2d 1280, 1281 (Fla. 2d DCA 2005) (noting that
under the statute, “a liability carrier may be joined at or before the time
judgment is entered against its insured”). “Such a motion could also be
entertained if made within the time for a motion for rehearing under Florida
Rule of Civil Procedure 1.530.” C.A. Seguros Catatumbo v. Herrera, 812
So. 2d 576, 577 (Fla. 3d DCA 2002).
Sound’s
motion was untimely under section 627.4136(4), because it was not filed at the
time of final judgment on August 4, 2014, or within the following fifteen days
allowed for a motion for rehearing under rule 1.530. Under rule 1.530, the
latest a motion for joinder could have been filed was August 19, 2014. After
that date the judgment became final and Nova could no longer be added as a
party. See Herrera, 812 So. 2d at 577-78 (noting that once the
judgment became final, it could not be amended to add the insurer as a party).
motion was untimely under section 627.4136(4), because it was not filed at the
time of final judgment on August 4, 2014, or within the following fifteen days
allowed for a motion for rehearing under rule 1.530. Under rule 1.530, the
latest a motion for joinder could have been filed was August 19, 2014. After
that date the judgment became final and Nova could no longer be added as a
party. See Herrera, 812 So. 2d at 577-78 (noting that once the
judgment became final, it could not be amended to add the insurer as a party).
Sound
argues that this court should dismiss Nova’s petition for lack of jurisdiction
because the order impleading Nova as a third party is not appealable. Sound
also claims that Nova will not suffer irreparable harm by its impleader in the
proceedings supplementary. However, as Nova argues, Sound treats impleading a
party and joining a party as if they are interchangeable. They are not.
argues that this court should dismiss Nova’s petition for lack of jurisdiction
because the order impleading Nova as a third party is not appealable. Sound
also claims that Nova will not suffer irreparable harm by its impleader in the
proceedings supplementary. However, as Nova argues, Sound treats impleading a
party and joining a party as if they are interchangeable. They are not.
Impleader
of a third party in proceedings supplementary “does not in and of itself imply
liability on the part of the impleaded third parties.” Instead, it provides the
party “with an opportunity to raise their defenses and protect their interests
consistent with genuine due process.” Mejia v. Ruiz, 985 So. 2d 1109,
1112-13 (Fla. 3d DCA 2008) (recognizing that an insurance company may present
defenses at the proceedings supplementary). However, Nova does not challenge
the order impleading it into the proceedings supplementary. Rather, Nova is
challenging the order adding it to the final judgment as a party. The trial
court departed from the essential requirements of the law by joining Nova as
party to a final judgment that had been already rendered. Nova is irreparably
harmed because it has been made responsible for coverage without having been
given an opportunity to raise any defenses it might have to the determination
of entitlement to coverage or the amount of coverage.
of a third party in proceedings supplementary “does not in and of itself imply
liability on the part of the impleaded third parties.” Instead, it provides the
party “with an opportunity to raise their defenses and protect their interests
consistent with genuine due process.” Mejia v. Ruiz, 985 So. 2d 1109,
1112-13 (Fla. 3d DCA 2008) (recognizing that an insurance company may present
defenses at the proceedings supplementary). However, Nova does not challenge
the order impleading it into the proceedings supplementary. Rather, Nova is
challenging the order adding it to the final judgment as a party. The trial
court departed from the essential requirements of the law by joining Nova as
party to a final judgment that had been already rendered. Nova is irreparably
harmed because it has been made responsible for coverage without having been
given an opportunity to raise any defenses it might have to the determination
of entitlement to coverage or the amount of coverage.
Accordingly,
we grant the petition for a writ of certiorari and quash the order joining Nova
as a party. This holding is without prejudice to Sound’s right to file a
separate action against Nova seeking a declaratory judgment for a determination
as to coverage. See C.A. Seguros Catatumbo, 812 So. 2d at 578.
we grant the petition for a writ of certiorari and quash the order joining Nova
as a party. This holding is without prejudice to Sound’s right to file a
separate action against Nova seeking a declaratory judgment for a determination
as to coverage. See C.A. Seguros Catatumbo, 812 So. 2d at 578.
Petition
granted; order quashed. (CASANUEVA and SILBERMAN, JJ., concur.)
granted; order quashed. (CASANUEVA and SILBERMAN, JJ., concur.)
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