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District Court of Appeal of Florida,Third District.

UNITED NATIONAL INSURANCE COMPANY, etc., Appellant, v. I & JC CORP., Appellee.

No. 3D05-2518.

Decided: April 26, 2006

Before LEVY and GREEN, JJ., and SCHWARTZ, Senior Judge. Fowler WhiteBoggs Banker and Charles W. Hall, and Mark D. Tinker, St. Petersburg, and John D. Russell, Tampa, for appellant. Zarco Einhorn Salkowski & Brito and Michelle M. Odio and Robert Zarco, Miami;  Roberto Villasante, Coral Gables, for appellee.

United National Insurance Company (“United”) appeals from an Order entering Final Declaratory Judgment finding that United has a duty to indemnify and defend I & JC Corporation (I & JC), the insured, in an underlying suit wherein I & JC is the defendant.

When granting a motion for summary judgment, the trial court must determine that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.  Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).   In the instant case, an issue of fact exists regarding the applicability of a policy exclusion.  Higgins v. State Farm Fire & Cas. Co., 894 So.2d 5, 10 (Fla.2005) (A liability insurer's obligation to defend a claim against its insured must be determined from the allegations in the underlying complaint, except that where an insurer's claim that there is no duty to defend is based on factual issues that would not normally be alleged in the underlying Complaint, courts may entertain a declaratory action seeking a determination of a factual issue upon which the insurer's duty to defend depends);  Puritan Ins. Co. v. Frank, 436 So.2d 1140 (Fla. 3d DCA 1983).

Accordingly, we reverse the Final Declaratory Judgment and remand for further proceedings solely as to the issue regarding the applicability of the policy exclusion.

Reversed and remanded.


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