FORT MYERS — A federal court has declined to accept jurisdiction of a commercial insurer's declaratory judgment in a decade-long litigation involving a Fort Myers construction company and construction defects arising out of a 2007 home remodeling project.
According to the June 7 U.S. District Court for the Middle District of Florida Fort Myers Division filing, one of the defendants, Dana M. DiCarlo as trustee of the Dana M. DiCarlo Revocable Trust, filed a motion to dismiss/abstain the declaratory action by plaintiff Mid-Continent Casualty Company (MCC).
The case stems from a 2007 lawsuit filed by DiCarlo against G.R. Construction (GRC) for "latent defects and damages" in the renovation of DiCarlo's home. DiCarlo was awarded a judgment of more than $500,000 in the case which she has not been able to collect. MCC, GRC's insurer, then filed its declaratory action with DiCarlo, then attempted to implead MCC and filed a motion for proceedings supplementary.
MCC argued its motion "should be resolved in this court under the 'first-filed' rule" with DiCarlo arguing the motion "concerns the same parties and issues" already pending in the case.
The court declined to exercise its jurisdiction over MCC's motion with U.S. District Judge Sheri Polster Chappell stating the court "had no way to determine" if the parties and issues in the case were the same in MCC's declaratory action until the lower court ruled on the motion for proceedings supplementary filed by DiCarlo.
Polster Chappell stated "the missing information is essential to the analysis" while declining to accept jurisdiction MCC's declaratory action and granting DiCarlo's motion to dismiss the action.