STATE DEPARTMENT OF INSURANCE v. NATIONAL REINSURANCE CORPORATION 50 (1999)

ON MOTION TO DISMISS

Florida Employers Safety Association Self-Insurance Fund (FESA) seeks review of a partial summary judgment on its declaratory judgment action to interpret the reinsurance contract between the parties and granting National Reinsurance Corporation's (NRC) counterclaim for offset of certain debts and obligations.   Still pending are FESA's two counts for breach of the reinsurance contract which, when decided, would determine whether NRC is liable to FESA under the contract.   NRC moves to dismiss the appeal for lack of jurisdiction.   FESA invokes the jurisdiction of this court under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).

That subsection provides for review of non-final orders which determine “the issue of liability in favor of a party seeking affirmative relief.”   The partial summary judgment determined that the reinsurance contract provided for three multipliers for each aggregate endorsement which would be applied once liability under the contract was determined.   It also determined that NRC could offset other obligations of FESA against any recovery FESA might obtain against NRC. Both determinations are contingent upon a finding of liability under FESA's breach of contract causes of action.   As the order appealed did not determine the issue of liability, we conclude the rule does not authorize this appeal.   See, e.g., Auto-Owners Ins. Co. v. Potter, 729 So.2d 532 (Fla. 4th DCA 1999);  BE & K, Inc. v. Seminole Kraft Corp., 583 So.2d 361 (Fla. 1st DCA 1991).

Accordingly, the appeal is dismissed.

HAZOURI, J.

POLEN and STEVENSON, JJ., concur.