Hartford Acc. & Indem. Co. v. U.S.C.P. Co.

• Citation: 515 So.2d 998,12 Fla. L. Weekly 2182
• Decision Date: 09 September 1987
• Docket Number: No. 85-1235,85-1235
• Parties: 12 Fla. L. Weekly 2182 HARTFORD ACCIDENT & INDEMNITY COMPANY, Petitioner, v. U.S.C.P. CO., Respondent.
• Court: Court of Appeal of Florida (US)

Page 998

515 So.2d 998

12 Fla. L. Weekly 2182

HARTFORD ACCIDENT & INDEMNITY COMPANY, Petitioner, v. U.S.C.P. CO., Respondent.

No. 85-1235.

District Court of Appeal of Florida Fourth District.

Sept. 9, 1987.

Rehearing and Rehearing En Banc Denied Dec. 11, 1987.

G. William Bissett of Preddy, Kutner & Hardy, P.A., Miami, for petitioner.

Wilton L. Strickland of Ferrero, Middlebrooks & Strickland, Fort Lauderdale, for respondent.

EN BANC

DELL, Judge.

Petitioner seeks review, by petition for writ of certiorari, of orders, denying petitioner's motion to dismiss Count II of respondent's crossclaim, requiring petitioner to answer certain interrogatories and an order to produce documents and memoranda. We deny certiorari review of the order denying petitioner's motion to dismiss and the order requiring petitioner to answer certain interrogatories. We grant certiorari review and quash the order compelling production of documents and memoranda.

In 1984 U.S. Fire Insurance Company (U.S. Fire) filed a complaint for declaratory judgment against petitioner, Hartford Accident & Indemnity Company (Hartford) and respondent, U.S. Concrete Pipe Company (U.S.C.P.). U.S. Fire insured U.S.C.P. U.S. Fire's complaint sought a declaration that the excess insurance policy it had issued to U.S.C.P. did not provide coverage for a tort claim filed against U.S.C.P., and that to the extent U.S. Fire might be compelled to pay under its excess policy, it would have a cause of action for equitable subrogation against Hartford, the primary liability insurance carrier for U.S.C.P. U.S.C.P. responded by filing a two-count counterclaim against U.S. Fire and a two-count crossclaim against Hartford. This petition for writ of certiorari is concerned only with Count II of U.S.C.P.'s crossclaim against Hartford for bad faith and the discovery questions related to this count. U.S.C.P. alleged that Hartford acted in bad faith by refusing to pay U.S.C.P. all sums due under its policy of insurance. Hartford filed a motion to dismiss U.S.C.P.'s crossclaim alleging, among other things, that the crossclaim failed to state a cause of action because an insured has no cause of action to recover punitive damages from its insurer based upon a pleading that alleges nothing more than the insurer "acted in bad faith" by refusing to indemnify or "to pay [the insured] all sums due under its policy of insurance." Hartford also claimed that the trial court should have dismissed the count because Florida law does not recognize a bad faith cause of action for punitive damages in the context of a first party claim by an insured against its insurer absent proof of an independent tort. The trial court rejected these arguments and denied Hartford's motion to dismiss.

U.S.C.P. also served Hartford with interrogatories and a request for production. Hartford filed written objections and requested a protective order claiming that the requested discovery invaded its work product and attorney-client privileges because it sought production of correspondence, memoranda, or other documents involving communications between Hartford and its attorneys. The trial court denied Hartford's objections and ordered it to answer the interrogatories and to produce the documents requested by U.S.C.P. Hartford filed its petition for certiorari and subsequently, the trial court denied Hartford's request to stay the effect of the discovery order pending review by this court.

A petition for writ of certiorari is the appropriate vehicle for testing the correctness of an order governing discovery. Greyhound Lines, Inc. v. Jackson, 445 So.2d 1107, 1108 (Fla. 4th DCA 1984); Gadsden County Times, Inc. v. Horne, 426 So.2d 1234, 1236 (Fla. 1st DCA), review denied, 441 So.2d 631 (Fla.1983); Malt v. Simmons, 405 So.2d 1018, 1018-19 (Fla. 4th DCA 1981). While certiorari may be used to obtain review of discovery orders, with the exception of the decision in Allstate Insurance Company v. Gibbs, 340 So.2d 1202 (Fla. 4th DCA 1976), cert. dismissed, 354 So.2d 980 (Fla.1977), this court has until recently held the extraordinary writ of certiorari could not be used to obtain review of orders denying motions to dismiss. In Chalfonte Development Corporation v. Beaudoin, 370 So.2d 58 (Fla. 4th DCA 1979), we said:

This case does not warrant the writing of an opinion because the grounds for issuance of the common law writ of certiorari have been discussed in innumerable cases, many of recent vintage. However, in the hope of stemming an ever increasing tide of unfounded petitions for certiorari we state once again that non-final orders not reviewable by interlocutory appeal pursuant to Fla.R.App.P. 9.130 will not be reviewed by petition for common law certiorari unless the order does not conform to the essential requirements of law and to proceed without immediate review may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal is inadequate.

As we said in Siegel v. Abramowitz, [309 So.2d 234 (Fla. 4th DCA 1975) ] infra n. 1, it would no doubt be expeditious for this court to resolve the issue presented at this point in time. However, we have persistently refused to alter the rule in the name of expedition. The appellate rule provides for interlocutory review of certain non-final orders because it is essential that they be reviewed during the pendency of the case in the trial court. Generally, all other appellate review is postponed until the matter is concluded in the trial court for rather obvious reasons.

Id. at 59.

Notwithstanding this court's decision in Chalfonte Development Corporation, and There is no question that a trial judge has no option but to terminate a dissolution action upon the death of one of the parties. Thus, the trial court erred in failing to dismiss the action.

without the discovery question presented in Allstate Insurance Company v. Gibbs, we accepted certiorari jurisdiction and quashed orders denying motions to dismiss in Home Insurance Company of Illinois v. Sentry Insurance A Mutual Company, 461 So.2d 1038 (Fla. 4th DCA 1985) and Canadian Home Insurance Company v. Norris, 471 So.2d 217 (Fla. 4th DCA 1985). However, more recently in Doerschuck v. Doerschuck, 481 So.2d 1317 (Fla. 4th DCA 1986), we reverted to the view expressed in Chalfonte and denied a petition for certiorari seeking review of an order denying a motion to dismiss. In his special concurrence in Doerschuck, Judge Glickstein said:

The court may issue a writ of certiorari only when there is a departure from the essential requirements of law and no adequate remedy on plenary appeal. In the present case, there was a departure from the essential requirements of law. However, there is a remedy available on plenary appeal, notwithstanding that the parties may be exposed to costly, lengthy and unnecessary litigation. Unfortunately, these reasons are not adequate to justify certiorari review.

Id. at 1317. [Emphasis in original] [Citations omitted]. These decisions highlight the inconsistent position that we have taken when presented with a petition for certiorari review of an order denying a motion to dismiss.

Obviously a compelling urge to take jurisdiction arises when a trial court has erroneously denied a motion to dismiss and has clearly departed from the essential requirements of law. However, this court has a duty to maintain consistency in its decisions and has determined that en banc consideration of this question is mandated. Therefore we address this petition for writ of certiorari en banc to recede from Allstate Insurance Company v. Gibbs, supra, Canadian Home Insurance Company v. Norris, supra, and Home Insurance Company of Illinois v. Sentry Insurance A Mutual Company, supra, to the extent that these opinions granted certiorari review of an order denying a motion to dismiss.

We see no distinction between a direct challenge by certiorari of an order denying a motion to dismiss and one that is brought to us with a discovery question. In either case the parties may incur unnecessary costs of further litigation in the event of a reversal on plenary appeal. While U.S.C.P.'s crossclaim may be inartfully pleaded, a motion for more definite statement may furnish a basis for further defensive pleadings by Hartford concerning the requested discovery. On the other hand, further amendment may establish a claim for bad faith under section 624.155, Florida Statutes (1982). ¹ In some cases the issue created by an erroneous interlocutory order may become moot during the course of the trial court proceeding or by the final judgment without intervention by this court. Additional reasons for denial of certiorari jurisdiction can be found in yet another passage from Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975):

Petitioner contends that he will not have a full, adequate and complete remedy after final judgment because he will have gone through a trial under the burden of the order complained of, incur substantial expenses for experts, etc., and because resolution of the issue now on appeal might preclude the necessity of a second trial. To paraphrase petitioner's argument, it would be expedient for this court to resolve the question now Id. at 235.

                and save everyone a great deal of time and expense.  On its face that is a very compelling argument!   However, acceptance of such an argument would surely lead to a further inundation of the appellate courts of this state with petitions for certiorari in cases previously cognizable at law and would thereby create greater detriments than benefits to an already overloaded judicial system.  One can hardly envision a case wherein the loser on an interlocutory motion would not feel an immediate determination of the issue would facilitate the handling of the remainder of the case, and save time, effort and expense.  For this reason such grounds constitute an insufficient basis for obtaining a writ of certiorari to review an

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