DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
January Term 2011
MID-CONTINENT CASUALTY COMPANY,
UNITED RENTALS, INC.,
[June 1, 2011]
Petitioner Mid-Continent Casualty Company (MCC) seeks certiorari
review and relief from a Broward Circuit Court order denying its motion
to dismiss or sever respondent United Rentals, Inc.’s (United Rentals)
third party claim against it for declaratory relief. We deny the petition in
part insofar as it challenges the order denying petitioner’s motion to
dismiss, but grant the petition insofar as the trial court denied the
motion to sever. We quash the order to that extent, and remand for
This cause arises from a wrongful death action filed by the personal
representative of the Estate of Larry Christopher Ferguson (Ferguson)
against General Interior Systems Southern, Inc. (GIS), United Rentals,
and other defendants. Ferguson, an electrician performing contract work
for Courteaux Electric, died after operating a scissor lift leased by GIS
from United Rentals, an equipment rental company.
GIS had entered into a rental agreement with United Rentals which
required it to carry and maintain insurance coverage for any damage to
the equipment and to name United Rentals as an additional insured and
loss payee. As well, it provided that GIS would indemnify and hold
United Rentals harmless from any liability, claim, loss or other damage
caused by or arising from use of the rented equipment. MCC issued a
commercial general liability and commercial excess insurance policy to
GIS for the period covering the lift accident in this case.
In the wrongful death action b y the Estate, nine defendants are
named including GIS and United Rentals, and the claims include strict
liability and negligence for manufacturing defects, design defects, and
warning defects. United Rentals filed cross-claims against GIS and
included MCC as a cross-defendant. It sought a declaratory judgment
that it was an insured under the MCC policies. It also asserts that GIS
was contractually obligated to indemnify it and to have United Rentals
named as an additional insured under its insurance policy, underwritten
MCC moved to dismiss or sever the insurance coverage action from
the wrongful death action. It argued that including the two claims in one
pending lawsuit would violate Florida’s non-joinder statute, section
627.4136(1), Florida Statutes. Alternatively, MCC sought to sever the
coverage claims from the wrongful death tort claims pursuant to Florida
Rule of Civil Procedure 1.270(a). The trial judge offered to grant the
motion for severance conditioned on MCC’s stipulation that it would be
bound by the jury’s findings on liability in the Estate’s wrongful death
action, but MCC would not agree to that. The trial judge denied MCC’s
motion to dismiss or sever, leading to this petition for writ of certiorari.
Certiorari will lie from a trial court order denying a motion to sever an
insurance coverage action from the underlying tort action. See, e.g.,
Merchants & Businessmen’s Mut. Ins. Co. v. Bennis, 636 So. 2d 593 (Fla.
4th DCA 1994). The petitioner must demonstrate that the trial court
order departed from the essential requirements of law resulting in
material harm of an irreparable nature. See generally Bared & Co., Inc.
v. McGuire, 670 So. 2d 153 (Fla. 4th DCA 1996).
MCC argues that the order denying severance or dismissal in this
case warrants certiorari relief because it allows United Rentals to proceed
with its insurance coverage claims in the same proceeding as the
underlying tort action. The issues of insurance coverage would be
interjected into the wrongful death action. MCC would be forced to
participate in discovery as the lone insurer in a wrongful death action
against multiple defendants, and parties with no rights under its policy
would be permitted access to discovery on United Rentals’s coverage
Florida’s non-joinder of insurers statute, section 627.4136(1), Florida
Statutes, provides in part:
It shall b e 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.
The legislative intent for this statute is to “ensure that the availability
of insurance has no influence on the jury’s determination of the insured’s
liability and damages.” General Star Indem. Co. v. Boran Craig Barber
Engel Constr., 895 So. 2d 1136, 1138 (Fla. 2d DCA 2005). In Merchants
& Businessmen’s Mutual Insurance Co., we acknowledged that severance
is discretionary under Florida Rule of Civil Procedure 1.270(b), but
concluded that in a case with one tort claim against an insured and
another claim for coverage under an insurance policy, there is no reason
for the two claims to be tried together. That would defeat the purpose
and policy of the non-joinder statute. 636 So. 2d at 595.
We do not believe that two trials on the wrongful death issues would
be necessary, particularly if the trial court were to conduct trial in the
declaratory judgment action by United Rentals against MCC before the
separate wrongful death action. United Rentals’s third party action
against MCC is based on the insurance contract between GIS and MCC,
while the Estate’s wrongful death action seeks damages for the wrongful
death of Larry Christopher Ferguson.
Therefore we deny the petition insofar as petitioner challenges the
trial court’s denial of the motion to dismiss, but grant the petition for
writ of certiorari and quash the trial court’s ruling denying the motion to
POLEN, TAYLOR and GERBER, JJ., concur.
Petition for writ of certiorari to the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; David Krathen, Judge; L.T. Case No.
Maureen G. Pearcy, Melissa A. Gillinov and Ronald L. Kammer of
Hinshaw & Culbertson, L.L.P., Miami, for petitioner.
Stefanie R. Shelley, Alan B. Rose and Randy R. Dow of Page, Mrachek,
Fitzgerald & Rose, P.A., West Palm Beach, for respondent.
Not final until disposition of timely filed motion for rehearing.