Cohen, Scherer & Cohen, P.A. v. Pacific Employers Insurance Co.

KLEIN, Judge. The court, sua sponte, dismisses this appeal of an order dismissing a counterclaim with prejudice but leaving the main claim pending. Appellee/insurer settled a legal malpractice case brought against its insured, appellant/law firm, and paid the $50,000 deductible which the law firm was obligated to pay under the policy. Insurer then brought this suit against the law firm to collect the $50,-000 deductible, and the law firm counterclaimed, alleging that the insurer breached its obligations under the policy to properly defend the law firm. The trial court dismissed the counterclaim with prejudice because it failed to state a cause of action. Since the main claim is still pending, and since the main claim and the counterclaim are interrelated in that they both arise out of the malpractice claim and the obligations of the parties under the insurance policy in regard to the malpractice claim, this appeal is premature under S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974). See also City of Haines v. Allen, 509 So.2d 982 (Fla. 2d DCA 1987) (an order disposing of a compulsory counterclaim cannot be appealed until disposition of the main claim). This appeal is therefore dismissed without prejudice to appellant’s right to appeal the dismissal of the counterclaim after final determination of the main claim. POLEN and STEVENSON, JJ., concur.