Gibbs v. Reliance Insurance

ORFINGER, Judge. We dismiss the consolidated appeals, sua sponte, because the partial summary judge-ments appealed from are not appealable. An order dismissing a claim for punitive damages, but not a claim for compensatory damages, whether contained in a single count or in multiple counts, is not an appealable final order where the claims arise out of the same set of facts. Kingsland v. National Advertising Company, 384 So.2d 701 (Fla. 5th DCA 1980). Similarly, an order dismissing one count of a multi-count complaint is not appealable, even though based on a different legal theory, where the different counts all arise out of the same factual circumstances. North Indialantic Homeowners Association v. Bogue, 390 So.2d 74 (Fla. 5th DCA 1980). The first count of this two-count complaint sought compensatory and punitive damages against defendant Bell as the driver of a vehicle involved in the collision with plaintiffs vehicle, and sought similar damages against the corporate defendants and their insurer, on two theories: (1) ownership of the vehicle Bell was driving; and (2) vicarious liability as his employer. The second count sued only the corporate defendants on the theory of negligent entrustment. The court granted the partial summary judgment in favor of the corporate defendants as to punitive damages claimed in the first count, and granted the partial summary judgment in their favor as to both the compensatory and punitive damages claimed in the second count. There still remains for determination under the first count the claim for compensatory and punitive damages against defendant Bell and the claim for compensatory damages against the corporate defendants. The claims which were dismissed all arise out of the same accident, involve the same parties and the same injuries and are clearly interrelated with those claims which remain. Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975), cert. denied, 333 So.2d 465 (Fla.1976). The appeal is dismissed without prejudice to an appeal of the issues raised here following final judgment. Appeal DISMISSED. DAUKSCH, C. J., and SHARP, J., concur.