State v. National Reinsurance Corp.

Full title: STATE OF FLORIDA, DEPARTMENT OF INSURANCE, as the Receiver of FLORIDA…

Court: District Court of Appeal of Florida, Fourth District

Date published: Jun 30, 1999

755 So. 2d 677 (Fla. Dist. Ct. App. 1999)

Opinion

No. 99-1464.

Opinion filed June 30, 1999.

Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; J. Leonard Fleet, Judge; L.T. No. 96-11023 (08) CACE.

Kendall Coffey and Carla M. Barrow of Coffey, Diaz O'Naghten, LLP, Miami, for Appellant-State of Florida, Department of Insurance as the Receiver of Florida Employers Safety Association Self Insurers Fund.

John R. Dixon of Dixon, Lefler Lorenzen, P.A., Tampa, for Appellants-Value Rent-A-Car, Ameristaff, Inc. and Great American Employee Services, Inc.

Harley S. Tropin and Kenneth R. Hartmann of Kozyak Tropin Throckmorton, P.A., Miami, and Nick J. DiGiovanni, Damon N. Vocke and Leslie J. Rosen of Lord, Bissell Brook, Chicago, Illinois, for Appellee-National Reinsurance Corporation, a Delaware corporation.

ON MOTION TO DISMISS

HAZOURI, J.

Florida Employers Safety Association Self-Insurance Fund (FESA) seeks review of a partial summary judgment on its declaratory judgment action to interpret the reinsurance contract between the parties and granting National Reinsurance Corporation's (NRC) counterclaim for offset of certain debts and obligations. Still pending are FESA's two counts for breach of the reinsurance contract which, when decided, would determine whether NRC is liable to FESA under the contract. NRC moves to dismiss the appeal for lack of jurisdiction. FESA invokes the jurisdiction of this court under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).

That subsection provides for review of non-final orders which determine "the issue of liability in favor of a party seeking affirmative relief." The partial summary judgment determined that the reinsurance contract provided for three multipliers for each aggregate endorsement which would be applied once liability under the contract was determined. It also determined that NRC could offset other obligations of FESA against any recovery FESA might obtain against NRC. Both determinations are contingent upon a finding of liability under FESA's breach of contract causes of action. As the order appealed did not determine the issue of liability, we conclude the rule does not authorize this appeal. See, e.g., Auto-Owners Ins. Co. v. Potter, 729 So.2d 532 (Fla. 4th DCA 1999); BE K, Inc. v. Seminole Kraft Corp., 583 So.2d 361(Fla. 1st DCA 1991).

Accordingly, the appeal is dismissed.

POLEN and STEVENSON, JJ., concur.