Citizens Property Ins. Corp. v. Garfinkel

• Decision Date: 18 December 2009
• Docket Number: No. 5D09-1641.,5D09-1641.
• Citation: 25 So.3d 62
• Parties: CITIZENS PROPERTY INSURANCE CORPORATION, Petitioner, v. Alan B. GARFINKEL, Respondent.
• Court: Florida District Court of Appeals

25 So.3d 62

CITIZENS PROPERTY INSURANCE CORPORATION, Petitioner, v. Alan B. GARFINKEL, Respondent.

No. 5D09-1641.

District Court of Appeal of Florida, Fifth District.

December 18, 2009.

Rehearing Denied January 15, 2010.

Anthony J. Russo of Butler, Pappas Weihmuller Katz Craig LLP, Tampa, and Kathy J. Maus and Gina G. Smith, Tallahassee, for Petitioner.

Mayanne Downs and Kimberly D. Healy of King, Blackwell, Downs & Zehnder, P.A., Orlando, for Respondent.

MONACO, C.J.

The petitioner, Citizens Property Insurance Corporation, seeks a writ of prohibition directed to the trial court to prevent the court from taking any further action with respect to a first-party bad faith claim brought by the respondent, Alan B. Garfinkel. This case came to a head when the trial court denied Citizens' motion to dismiss, and later entered an order requiring Citizens to produce its attorneys for depositions, and compelling it to produce its claims files and certain other documents for an in camera inspection. Because section 627.351(6)(r), Florida Statutes (2008), immunizes Citizens from bad faith claims, we grant the writ.

This court is empowered by the Florida Constitution to issue writs of prohibition. See Art. V, § 4(b)(3), Fla. Const.; see also Fla. R.App. P. 9.030(b)(3). Prohibition is an extraordinary writ by which a superior court having appellate and supervisory jurisdiction over a lower court may prevent the lower court from exceeding its jurisdiction or usurping authority over matters not within its jurisdiction. See English v. McCrary, 348 So.2d 293 (Fla. 1977). It is well-established that a trial court lacks subject matter jurisdiction if a party enjoys the benefits of sovereign immunity with respect to the subject matter of the case before the court, and the issuance of the writ is appropriate to prevent the court from acting in the absence of such jurisdiction. See Circuit Court of Twelfth Judicial Circuit v. Dep't of Natural Res., 339 So.2d 1113 (Fla.1976); see also Underwood v. Univ. of Kentucky, 390 So.2d 433, 435-37 (Fla. 3d DCA 1980) (Pearson, J., specially concurring). Accordingly, we have jurisdiction to consider the issue before us, and we choose to exercise that jurisdiction.¹

In the present case Mr. Garfinkel obtained a policy of windstorm insurance from Citizens covering his residence. As with many other Floridians, his residence was damaged by the multiple 2004 hurricanes. After a dispute arose concerning the extent of damage to the residence Mr. Garfinkel filed a two-count complaint to enforce his contract rights. The first count alleged a breach by Citizens of the contract of insurance, while the second count sought a declaration that the damage was covered by the policy. The parties agreed to resolve these issues using the appraisal process, and an appraisal award was eventually entered in favor of Mr. Garfinkel. When Mr. Garfinkel moved to confirm the award, he sought an amount in excess of the policy limits, asserting three distinct claims resulting from three separate occurrences. The trial court confirmed the award, but limited the amount awarded to the policy limits for a single occurrence.

Mr. Garfinkel then amended his complaint, now asserting in Count I the right to a final judgment on the breach of contract claim, and in Count II a bad faith claim against Citizens under sections 624.155(1)(b)(1) and 626.954(1)(i)(3), Florida Statutes (2008). Citizens moved to dismiss on the basis of sovereign immunity, but the trial court denied the motion without elaborating on the basis for denial. When Citizens answered, it again asserted statutory and sovereign immunity, among other defenses. After Mr. Garfinkel sought discovery of its claims file and other documents, and sought to set its attorneys for deposition, Citizens objected. When the objections were overruled, Citizens sought prohibition in this court.

The issue specifically before us is whether Citizens is shielded by sovereign immunity for the purposes of bad faith claims. We begin our consideration of this important issue by examining the applicable statutes.

According to its enabling statute, Citizens was created by the Florida Legislature in order to ensure the existence of an orderly market for property insurance, and particularly windstorm insurance, within Florida. See § 627.351(6)(a)1., Fla. Stat. (2008). The statute continues:

The Legislature finds that private insurers are unwilling or unable to provide affordable property insurance coverage in this state to the extent sought and needed. The absence of affordable property insurance threatens the public health, safety and welfare and likewise threatens the economic health of the state. The state therefore has a compelling public interest and a public purpose to assist in assuring that property in the state is insured and that it is insured at affordable rates . . . It is necessary, therefore, to provide affordable property insurance to applicants who are in good faith entitled to procure insurance through the voluntary market but are unable to do so. The Legislature intends by this subsection that affordable property insurance be provided and that it continue to be provided, as long as necessary, through Citizens Property Insurance Corporation, a government entity that is an integral part of the state and that is not a private insurance company. (Emphasis supplied).

Thus, it is explicitly clear that Citizens is not a private insurance company, but rather is a state body. The Legislature then endowed Citizens with immunity against all liability and suit apart from five specific exceptions:

There shall be no liability on the part of, and no cause of action of any nature shall arise against, any assessable insurer or its agents or employees, the corporation or its agents or employees members of the board of governors or their respective designees at a board meeting, corporation committee members, or the office or its representatives, for any action taken by them in the performance of their duties or responsibilities under this subsection.

Such immunity does not apply to:

a. any of the foregoing persons or entities for any willful tort;

b. the corporation or its producing agents for breach of any contract or agreement pertaining to insurance coverage;

c. the corporation with respect to issuance or payment of debt;

d. any assessable insurer with respect to any action to enforce an assessable insurer's obligations to the corporation under this subsection; or

e. the corporation in any pending or future action for breach of contract or for benefits under a policy issued by the corporation; in any such action, the corporation shall be liable to the policyholders and beneficiaries for attorney's fees under 627.428.

See § 627.351(6)(r)1.a-e.

The rub comes because the very next paragraph, section 627.351(6)(r)(2), provides that:

2. The corporation shall manage its claim employees, independent adjusters, and others who handle claims to ensure they carry out the corporation's duty to its policyholders to handle claims carefully, timely, diligently, and in good faith, balanced against the corporation's duty to the state to manage its assets responsibly to minimize its assessment potential. (Emphasis supplied).

Citizens argues that the plain meaning of the statute permits only certain categories of suit against it, and bad faith claims are not among them. Mr. Garfinkel asserts to the contrary that the particular requirement to act in good faith found in section 627.351(6)(r)(2), suggests that the Legislature fully intended to allow a policy holder to assert a bad faith claim. The argument made by Citizens is more persuasive.

There are a number of foundational concepts that guide us in this regard. Initially, when the language of a statute is clear and conveys a certain and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning. Blanton v. City of Pinellas Park, 887 So.2d 1224 (Fla. 2004). It is when the statutory language is unclear that courts will apply rules of statutory construction and explore legislative history to determine legislative intent. Freeman v. First Union Nat'l Bank, 865 So.2d 1272 (Fla.2004). In this case, both parties argue that the statute is clear and unambiguous, yet they reach utterly opposite conclusions as to its meaning. We agree that § 627.351(6)(r)1.a-e is unambiguous, but we agree with the interpretation articulated by Citizens. When the Legislature set forth five exceptions to its grant of sovereign immunity, it intended for there to be only five exceptions. What is unclear, however, is the effect of section 627.351(6)(r)(2), which contains the good faith language. To resolve the issue of whether the Legislature intended a sixth exception, therefore, we must drill deeper.

As a matter of statutory construction, when, as in the present case, a statute articulates exceptions, no other exceptions may be implied. Dobbs v. Sea Isle Hotel, 56 So.2d 341 (Fla.1952). Here, because the Legislature identified five exceptions to its grant of immunity, there is no reason to think that another grant would show up in a nearby but separate paragraph, unless specifically identified as such.

Additionally, we know that in construing statutes involving sovereign immunity, any waiver of that immunity must be clear and unequivocal. Spangler v. Florida State Turnpike Auth., 106 So.2d 421, 424 (Fla.1958). There is no clear waiver of sovereign immunity in section 627.351(6)(r)(2). If there is a waiver there, it is quite murky.

Mr. Garfinkel, however, alleges that his claim arises under section 624.155, Florida Statutes (2007). In fact, his amended complaint specifically sets forth that statute as the basis for the bad faith count, and asserts a right to punitive damages after the appropriate hearing is held. That statute, entitled "Civil Remedy," provides that...