Southern Owners Insurance Co. v. Mathieu
2011 Fla. App. LEXIS 13716
Fla. Dist. Ct. App.2011Background
- In June 2006, the Mathieus learned of substantial water intrusion affecting the rear decks of their home.
- The Mathieus sued Innovative Flooring & Stonecrafters of SWF, Inc. for negligence related to the water intrusion.
- The Mathieus sought a declaration of coverage under Southern Owners' CGL policy to determine coverage for the Innovative claim.
- The Mathieus filed a separate declaratory judgment action against Southern Owners before obtaining any settlement or verdict against Innovative.
- The trial court denied Southern Owners' motion to dismiss, allowing the declaratory judgment action to proceed.
- The court reverses, holding the presuit requirements of section 627.4136(1) preclude the declaratory action where no settlement/verdict against an insured has occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether presuit requirements of 627.4136 apply to this DJ action | Mathieus contend presuit requirement not met by failure to settle | Southern Owners argues DJ premature per nonjoinder statute | Yes; DJ prematurely filed and should have been dismissed |
| Whether the nonjoinder statute requires a settlement/verdict before DJ against insurer | Mathieus had not settled with insured; DJ appropriate | Insurer protected; DJ improper until settlement | Yes; action must be dismissed for lack of presuit settlement/verdict |
| Whether certiorari is appropriate to review the dismissal decision | Certiorari not appropriate for ordinary dismissal | Certiorari permissible when presuit requirements not met | Yes; certiorari review granted to quash denial of dismissal |
Key Cases Cited
- Universal Sec. Ins. Co. v. Spreadbury, 524 So.2d 1167 (Fla. 2d DCA 1988) (clarifies certiorari review scope in insurer actions)
- Cincinnati Ins. Co. v. Moffett, 513 So.2d 1345 (Fla. 1st DCA 1987) (presuit requirements context for insurer actions)
- Dollar Sys., Inc. v. Elvia, 967 So.2d 447 (Fla. 4th DCA 2007) (premature DJ action; presuit requirements control)
- Gen. Star Indem. Co. v. Boran Craig Barber Engel Constr. Co., 895 So.2d 1136 (Fla. 2d DCA 2005) (injured party must obtain settlement/verdict against insured for coverage dispute)
- Hazen v. Allstate Ins. Co., 952 So.2d 531 (Fla. 2d DCA 2007) (discusses evolution of nonjoinder statute)