TRANSCONTINENTAL INS. v. Jim Black & Assoc.

888 So. 2d 671, 2004 WL 2599372
CourtDistrict Court of Appeal of Florida
DecidedNovember 17, 2004
Docket2D03-2083, 2D03-4371
StatusPublished
Cited by6 cases

This text of 888 So. 2d 671 (TRANSCONTINENTAL INS. v. Jim Black & Assoc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
TRANSCONTINENTAL INS. v. Jim Black & Assoc., 888 So. 2d 671, 2004 WL 2599372 (Fla. Ct. App. 2004).

Opinion

888 So.2d 671 (2004)

TRANSCONTINENTAL INSURANCE COMPANY, Appellant/Cross-Appellee,
v.
JIM BLACK & ASSOCIATES, INC. and Pompanette, LLC, Appellees/Cross-Appellants.

Nos. 2D03-2083, 2D03-4371.

District Court of Appeal of Florida, Second District.

November 17, 2004.

*672 Chris Ballentine and Jamie Billotte Moses of Fisher, Rushmer, Werrenrath, Dickson, Tallay & Dunlap, P.A., Orlando, for Appellant/Cross-Appellee.

Mark A. Boyle of Fink & Boyle, P.A., Fort Myers, for Appellee/Cross-Appellant Jim Black & Associates, Inc.

No appearance for Appellee/Cross-Appellant Pompanette, LLC.

SILBERMAN, Judge.

Transcontinental Insurance Company (the Insurer) appeals, and Jim Black & Associates (the Insured) cross-appeals a partial summary judgment entered in a declaratory judgment action filed by the Insurer against the Insured. We affirm in part and reverse in part.

The Insurer provided commercial general liability (CGL) insurance coverage to the Insured between March 26, 1999, and March 26, 2002, under three consecutive policies. One policy provided coverage under CGL form CG 00 01 01 96 (the 1996 policy form), and the other two policies provided coverage under CGL form CG 00 01 07 98 (the 1998 policy form). After Pompanette, LLC, sued the Insured in federal court for patent infringement and unfair competition, the Insurer agreed to defend the Insured under a reservation of rights. The Insurer reserved the right to file an action to establish that the CGL policies did not cover Pompanette's claims and indicated that if it prevailed in such an action, it would seek repayment of its defense costs.

The Insurer then filed a declaratory judgment action, requesting that the trial court determine that it was not obligated to defend or indemnify the Insured in connection with the Pompanette litigation and that the Insurer was entitled to recover the costs that it had incurred in defending the Insured. The Insured filed a counterclaim, asking the trial court to declare that the Insurer was obligated to defend and indemnify it. The Insured also asked the court to declare that even if the Insurer ultimately established that it had no indemnity and defense obligations, it was not entitled to recover its defense costs. Both parties eventually sought summary judgment on the issues.

In its order granting partial final judgment, the trial court found that the Insurer's *673 policies "do not provide either coverage for or a duty to defend against a claim of Patent Infringement." Further, the trial court found that Pompanette's unfair competition claim triggered the Insurer's duty to defend under the advertising injury provisions of the insurance policies. However, the court stated that it was not determining whether the unfair competition claim was actually covered under the policies. The trial court subsequently entered an order awarding the Insured $15,055.75 in attorney's fees and costs on the basis that the Insured had prevailed on its claim concerning the duty to defend.

The Insurer argues that the trial court erred in finding that it has a duty to defend and in awarding attorney's fees and costs to the Insured. In its cross-appeal, the Insured argues that the trial court erred in finding that the insurance policies do not cover Pompanette's patent infringement claim. The Insured also asserts that even if the Insurer ultimately establishes that the Pompanette claims are not covered, the Insurer should not be permitted to recover the costs of defending the Insured against Pompanette. Finally, the Insured challenges this court's jurisdiction to consider this appeal.

We conclude that we do have jurisdiction, and we reverse, in part, the judgment because the insurance policies do not provide coverage for or a duty to defend against Pompanette's unfair competition claim. We also reverse the order awarding fees and costs to the Insured. As to the cross-appeal, we affirm the trial court's conclusion that the insurance policies do not provide coverage for or a duty to defend against Pompanette's patent infringement claim. However, we remand for resolution by the trial court the issue of whether the Insurer may recover the costs expended to defend the Insured against Pompanette's lawsuit.

JURISDICTION

The Insured contends that Florida Rule of Appellate Procedure 9.110(n)[1] provides the exclusive basis for appellate review of an order determining the existence or nonexistence of insurance coverage and that appellate review is not available if an order only determines whether a duty to defend exists. The Insured asserts that because the trial court's partial final judgment only addresses the duty to defend and not the existence of coverage, jurisdiction for this appeal is not available under rule 9.110(n). See Nationwide Mut. Ins. Co. v. Harrick, 763 So.2d 1133 (Fla. 4th DCA 1999) (holding that an order determining that the insurer had a duty to defend, but not determining coverage, was not appealable under rule 9.110(n)).

Rule 9.110(n) states the following: "Judgments that determine the existence or nonexistence of insurance coverage in cases in which a claim has been made against an insured and coverage thereof is disputed by the insurer may be reviewed either by the method prescribed in this rule or that in rule 9.130."[2] Contrary to the Insured's argument that the partial final judgment only addresses the duty to defend, the judgment specifically concludes that the insurance policies provide no coverage *674 or duty to defend as to Pompanette's patent infringement claim. Indeed, in its cross-appeal, the Insured asks that we reverse that part of the judgment. Because the judgment resolves both coverage and duty to defend issues, the judgment is appealable under rule 9.110(n).

To the extent that the Insured's argument is that we must separately consider whether appellate jurisdiction exists over the partial resolution of Pompanette's unfair competition claim, again we conclude that we have jurisdiction. In Aetna Commercial Insurance Co. v. American Sign Co., 687 So.2d 834, 836 (Fla. 2d DCA 1996), this court, citing to Canal Insurance Co. v. Reed, 666 So.2d 888 (Fla.1996), specifically stated that we had jurisdiction to review a partial summary declaratory judgment that resolved the issue of an insurer's duty to defend but not the duty to indemnify. The Insured asserts that Aetna and Canal have been superceded by rule 9.110(n), and therefore, there is no appellate jurisdiction to review a judgment that determines only that there is a duty to defend and does not resolve whether there is a duty to indemnify.

In considering this argument, we note that subdivision (n) of rule 9.110 was established after the Florida Supreme Court stated that "it would be in the best interests of all the parties for coverage issues to be resolved as soon as possible." Canal, 666 So.2d at 892. In Canal, the court reviewed a declaratory judgment that resolved the issue of insurance coverage. The court reiterated that the order was appealable as a final order, but it suggested that "the Appellate Court Rules Committee consider an appropriate method for providing expedited review of these cases to avoid unnecessary delays in the final resolution of the underlying actions." Id. In response, the committee adopted subdivision (n) to rule 9.110, which took effect on January 1, 1997. See Amends. to the Fla. R.App. P., 696 So.2d 1103, 1124-26 (Fla.1996); Fla. R.App. P. 9.110 committee notes, 1996 amend.

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Cite This Page — Counsel Stack

Bluebook (online)
888 So. 2d 671, 2004 WL 2599372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/transcontinental-ins-v-jim-black-assoc-fladistctapp-2004.