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Florida Fifth DCA reverses trial court's abatement of declaratory judgment action against insurer pending conclusion of premises liability action, finding dismissal is proper remedy

On April 28, 2017, in International Special Events and Recreation Ass’n v. Bellina, No. 5D16-4021, the Florida Fifth DCA granted a writ of certiorari to the defendants and reversed a trial court’s denial of their motion to dismiss plaintiff’s lawsuit seeking a declaratory judgment that a surplus line insurer provided coverage applicable to the plaintiff’s related premises liability claim. The plaintiff had filed a premises liability claim against one of the defendants and while that lawsuit was pending filed a declaratory judgment action for a determination that the premises liability’s defendant’s surplus line insurer provided liability coverage that was applicable to the premises liability claim. Ordinarily, Florida’s non-joinder statute, Fla. Stat. Section 627.4136, would prevent a lawsuit against a liability insurer prior to a determination of the liability of the insured. However, the plaintiff maintained that this provision did not apply because the insurer was a surplus line insurer within the meaning of Fla. Stat. Section 626.913(4), which provides that “[e]xcept as may be specifically stated to apply to surplus lines insurers, the provisions of chapter 627 do not apply to surplus lines insurance . . .” The Fifth DCA concluded that the trial court correctly ruled 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), but that the trial court erred in holding that the declaratory judgment action should simply be abated rather than dismissed.

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