TIG Ins. Co. v. Wagner

707 So.2d 945 (1998) TIG INSURANCE COMPANY, Petitioner, v. Stephen J. WAGNER, Bernice Moskowitz, the Equitable Life Assurance Society of the United States, a foreign corporation, and Equitable Variable Life Insurance Company, a foreign corporation, Respondents. No. 97-3389. District Court of Appeal of Florida, Fourth District. March 18, 1998. Geralyn M. Passaro of Peters, Robertson, Lax, Parsons, Welcher, Mowers & Passaro, Fort Lauderdale, for petitioner. Steven M. Katzman and Robert J. Hauser of Tew & Beasley, L.L.P., West Palm Beach, for respondent Stephen J. Wagner. KLEIN, Judge. Petitioner insurer seeks certiorari from an order abating its declaratory action seeking to determine coverage. We have jurisdiction. Britamco Underwriters, Inc. v. Central Jersey Invs., Inc., 632 So.2d 138 (Fla. 4th DCA 1994) (trial court departed from essential requirements of law, and insurer had no adequate remedy on appeal from final judgment, where trial court abated declaratory action to determine coverage pending outcome of tort case). In the present case the insurer is contesting coverage based on lack of notice, an issue which is not involved in the tort action, and if that issue were resolved in favor of the insurer it would have no duty to defend the tort case. We conclude, under Britamco and Indemnity Insurance Co. of North America v. Ridenour, 629 So.2d 1053 (Fla. 2d DCA 1993) that the trial court departed from the essential requirements of law in granting the motion to abate, and that the insurer will have no remedy on appeal from final judgment. We therefore quash the order granting the motion to abate so that the declaratory action can proceed on the issue of whether the insurer has no duty to defend or indemnify because of lack of notice. WARNER and FARMER, JJ., concur.