Citizens Prop. Ins. Corp. v. San Perdido Ass'n, Inc.

• Decision Date: 15 November 2012
• Docket Number: No. SC10–2433.,SC10–2433.
• Citation: 104 So.3d 344
• Parties: CITIZENS PROPERTY INSURANCE CORPORATION, etc., Petitioner, v. SAN PERDIDO ASSOCIATION, INC., etc., Respondent.
• Court: Florida Supreme Court

104 So.3d 344

CITIZENS PROPERTY INSURANCE CORPORATION, etc., Petitioner,
v.
SAN PERDIDO ASSOCIATION, INC., etc., Respondent.

No. SC10–2433.

Supreme Court of Florida.

Nov. 15, 2012.

[104 So.3d 345]

Barry Scott Richard and Glenn Thomas Burhans, Jr. of Greenberg Traurig, P.A., Tallahassee, FL, for Petitioner.

Richard Michael Beckish, Jr. of Liberis Law Firm, P.A., Pensacola, FL, for Respondent.

Robert Anthony Cuevas, Jr., County Attorney and Erica Sunny Shultz Zaron, Assistant County Attorney, Miami, FL, for Amicus Curiae.

PARIENTE, J.

The issue in this case is whether an appellate court should review a non-final order denying a claim of sovereign immunity by Citizens Property Insurance Corporation (Citizens), a state-created entity that provides property insurance, in a bad faith action stemming from the entity's handling of a property damage claim. This issue arises in the context of the broader question of when appellate courts should use common law writs to review non-final orders involving claims of immunity prior to the entry of a final judgment and when this Court should expand the list of non-final appealable orders. While we do not resolve the broader issue in this case, we determine that Citizens' claim of immunity is not reviewable by the appellate courts either through the writ of certiorari or the writ of prohibition and decline to expand the list of non-final orders reviewable on appeal to include the discrete legal issue presented in this case.

This case came to us because in denying Citizens' petition for prohibition, the First District Court of Appeal certified conflict between its decision and decisions of the Fifth District Court of Appeal, which had issued writs of prohibition in similar cases involving Citizens where Citizens claimed sovereign immunity from suits alleging bad faith in failing to settle property damage

[104 So.3d 346]

claims. Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 46 So.3d 1051, 1053 (Fla. 1st DCA 2010) (asserting conflict between its decision and both Citizens Property Insurance Corp. v. Garfinkel, 25 So.3d 62 (Fla. 5th DCA 2009), and Citizens Property Insurance Corp. v. La Mer Condominium Assoc., 37 So.3d 988 (Fla. 5th DCA 2010)). In addition, the First District denied Citizens' petition for certiorari and certified the following question as one of great public importance:

Whether, in light of the supreme court's ruling in Department of Education v. Roe, 679 So.2d 756 (Fla.1996), review of the denial of a motion to dismiss based on a claim of sovereign immunity should await the entry of a final judgment in the trial court?

San Perdido, 46 So.3d at 1053. We have jurisdiction on the basis of both a certified conflict and a certified question of great public importance. Seeart. V, § 3(b)(4), Fla. Const.

We resolve the certified conflict by concluding that a writ of prohibition is not available to challenge a non-final order denying a motion to dismiss based on a claim of sovereign immunity where sovereign immunity has been partially waived. We therefore approve San Perdido to the extent that it recognized a writ of prohibition is unavailable and disapprove Garfinkel and La Mer to the extent that those cases use a petition for writ of prohibition to reach the issue pertaining to this type of sovereign immunity. We decline to answer the extremely broad certified question, which could apply to many different types of claims of sovereign immunity,¹ but rather rephrase it as follows to address the circumstances of this case:

Should appellate review of a claim of immunity by Citizens Property Insurance Corporation, a state-created entity, from a bad faith action arising out of the handling of a property damage claim await the entry of a final judgment in the trial court?
For the reasons explained in this opinion, we answer that rephrased certified question in the affirmative.

FACTS

This action stems from damage that San Perdido Association, Inc. (San Perdido), incurred after Hurricane Ivan caused substantial property damage in 2004. Citizens is a state-created insurance company that is charged with providing property damage insurance to Floridians who cannot otherwise obtain insurance from private entities. San Perdido, which was insured through Citizens, initially filed a claim under a windstorm insurance policy, but Citizens refused to pay the full claim.

San Perdido then filed an action to compel in the circuit court, and the circuit court ruled in its favor. Citizens appealed to the First District, which summarily affirmed the decision. See Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 22 So.3d 71 (Fla. 1st DCA 2009) (table).

After prevailing in its initial suit, San Perdido brought a statutory first-party bad faith action against Citizens under section 624.155, Florida Statutes (2004), alleging that Citizens engaged in bad faith insurance practices when it refused to make payments. San Perdido, 46 So.3d at 1051–52. Citizens filed a motion to dismiss

[104 So.3d 347]

the action, asserting that it was immune from this type of suit pursuant to section 627.351(6), Florida Statutes (2009). Id. at 1052. The circuit court denied Citizens' motion to dismiss, citing to the statutory exceptions to immunity provided for in section 627.351(6)(s) 1., which include actions involving a breach of contract and a willful tort. Citizens sought interlocutory review by a writ of prohibition or certiorari in the First District. Id. at 1052.

The First District recognized Citizens' status as a “government entity,” created by section 627.351(6). Id. The district court stated that while the Legislature provided Citizens with a limited grant of immunity in connection with Citizens' performance of its duties and responsibilities, such immunity did not extend to a willful tort or a breach of contract pertaining to insurance coverage. Id. In addressing the appropriateness of granting interlocutory review as to the circuit court's finding that the suit involved one of these exceptions, the First District relied on this Court's decision in Department of Education v. Roe, 679 So.2d 756 (Fla.1996), and explained:

In [Roe ], this court declined to undertake interlocutory review of the denial of the motion to dismiss, and noted that such a ruling does not ordinarily qualify for review by certiorari. The supreme court expressly approved this court's decision. The supreme court in Roe acknowledged that questions of sovereign immunity had at one time been treated as issues of subject matter jurisdiction, but the Roe court rejected further application of that theory and instead observed that such immunity is not lost merely because review must wait until after a final judgment.

San Perdido, 46 So.3d at 1052. The First District noted that although the instant case and Roe dealt with different sections of the Florida Statutes, “the statutory waivers” of the two sections were “similar.” Id. at 1053. The district court ultimately reasoned that in light of Roe, and “[w]ithout the irreparable harm required for certiorari,” Citizens was not entitled to interlocutory review. Id. Thus, the First District did not reach the question regarding whether the allegations pertaining to bad faith fell under the exceptions to Citizens' sovereign immunity.

The First District further held that based on this Court's precedent, a party was unable to use a writ of prohibition in order to seek relief where a trial court denied a party's claim of immunity. See id. at 1052. The First District noted that the Fifth District reached a contrary decision in Garfinkel, 25 So.3d at 62, a decision that relied on this Court's opinion in Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113 (Fla.1976). San Perdido, 46 So.3d at 1052–53. The First District concluded, however, that the “jurisdictional theory” of Circuit Court of Twelfth Judicial Circuit—which treated review of a motion to dismiss based on sovereign immunity as a “question of the trial court's subject matter jurisdiction”—was no longer applicable after this Court's more recent decision in Roe.Id. at 1053.

In a dissent, Judge Wetherell agreed with the Fifth District's conclusion in Garfinkel that Citizens is immune from bad faith causes of action pursuant to section 627.351(6)(s) 1. Id. (Wetherell, J., dissenting). Judge Wetherell noted that “Roe involved a claim of sovereign immunity under section 768.28, Florida Statutes, pursuant to which governmental entities are subject to suit in tort actions but their liability is capped, whereas this case involve[d] a claim that Citizens is statutorily immune from suit under section 627.351(6)(s) 1.,” and that “[u]nlike immunity

[104 So.3d 348]

from liability, which is not lost if review is deferred until the end of the case, immunity from suit is lost if the party is forced to go through litigation.” Id. at 1054. Judge Wetherell reasoned that Citizens' petition for writ of certiorari should have been granted “because the trial court's erroneous order denying Citizens['] immunity from [San Perdido's] suit will cause material injury to Citizens that cannot be fully remedied upon plenary appeal.” Id. at 1053–54. Noting that irreparable injury is not enough to justify certiorari review, Judge Wetherell also concluded “that the trial court departed from the essential requirements of law in denying Citizens['] motion to dismiss because, as explained in Garfinkel, a bad faith claim under section 624.155 is not a tort claim and, thus, not a ‘willful tort’ for purposes of section 627.351(6)(s) 1.a.” Id. at 1055–56.

Citizens sought this Court's review, asserting the First District improperly denied Citizens' petition for writ of prohibition or writ of certiorari to review the denial of its motion to dismiss based on the immunity conferred in section 627.351(6), Florida Statutes.

ANALYSIS

We begin with the general proposition that non-final orders in the course of trial court proceedings are generally reviewed on...