Thursday, October 28, 2010

Insurance Appraisal: What Comes First A Coverage Or Damage Determination?

In Citizens Property Insurance Company v. Michigan Condominium Association (4D10-1794), the Fourth District concluded that the trial court erred by ordering an appraisal without first determining coverage disputes.  The court certified conflict with Sunshine State  Ins. Co. v. Rawlins, 34 So. 3d 753 (Fla. 3d DCA 2010), which was discussed in an earlier post HERE. There are other opinions, including an en banc opinion, from the Third District which it also conflicts with, however, the court did not note conflict with those decisions.  The Fourth District stated:
We appreciate the third district’s rationale that the dual-track approach may save  “‘judicial  resources  which  might  otherwise  be required  in  resolving  the  factual  and  legal  issues  involved  in  the [coverage  issue]  by  a  relatively  swift  and informal  decision  by the appraisers  as  to  the  amount  of  the  loss.’”...However,  we  believe  that  “[a]  finding  of  liability  necessarily  precedes  a determination of damages.”
UPDATE: It is noteworthy that while the court did certify conflict, jurisdiction of the Florida Supreme Court was not invoked.  Therefore, this conflict will remain and will have to be resolved another day.

[I typed this post on the date that is indicated as its publication date.  I saw THIS post on Abstract Appeal and realized I had never officially published my post.  Thanks to Matt at Abstract Appeal!]

Wednesday, October 6, 2010

Conflict Certified To Supreme Court On Interlocutory Jurisdiction To Consider Citizens Bad Faith Issue

In Citizens Property Insurance Corporation v. San Perdido Association, Inc. (1D09-6183), a divided panel of the First District both certified conflict and certified the case as one of great public importance.  The majority concluded:
Citizens’ petition for prohibition or certiorari is denied, and pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) and (vi) this court certifies conflict with the fifth district decisions in Garfinkel and La Mer Condominium Assoc., and further certifies the following question 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?
The Garfinkel decision was discussed in a prior post at THIS link and the briefs and oral argument were posted at THIS link. 

In this First District action, Judge Clark wrote the majority opinion and was joined by Judge Davis. Judge Wetherell wrote a dissenting opinion.  The majority described the facts as follows:
This case arises from a claim by San Perdido under a windstorm insurance policy with Citizens, after Hurricane Ivan caused substantial property damage in 2004. Citizens persistently refused to fully pay its obligation under the terms of the insurance policy, requiring San Perdido to file a circuit court action to compel such payment, and then defend that award in Citizens’ appeal to this court. The circuit court ruling was upheld by this court, in Citizens Property Insurance v. San Perdido Assoc., 22 So. 3d 71 (Fla 1st DCA 2009), and San Perdido thereafter filed its section 624.155 bad faith action in the circuit court. Citizens responded with a motion to dismiss, asserting that the action is barred by the immunity conferred on Citizens in section 627.351(6), Florida Statutes. Citizens argued that this statutory provision grants it sovereign immunity.
***
In its section 624.155 action, San Perdido alleged that Citizens engaged in a series of bad faith practices in its handling of San Perdido’s insurance claim, and that such conduct was both a breach of contract and a willful tort under section 624.155. In denying Citizens’ motion to dismiss, the trial court reasoned that San Perdido’s section 627.155 lawsuit is within the section 627.351(6)(s)(1) exceptions to Citizens’ immunity. Although Citizens could challenge that ruling after an adverse judgment if San Perdido should prevail on the merits of its lawsuit at trial, Citizens now seeks an immediate writ of prohibition or certiorari, and asks this court to preclude any further proceedings in the trial court.
With regard to the legal issue, the court stated:
Contrary to the supreme court’s pronouncements in Roe, the fifth district has issued writs of prohibition where Citizens claimed sovereign immunity in response to a section 624.155 lawsuit for bad faith insurance practices. See Citizens Property Insurance v. Garfinkel, 25 So. 3d 62 (Fla. 5th DCA 2009); see also Citizens Property Insurance v. La Mer Condominium Assoc., 37 So. 3d 988 (Fla. 5th DCA 2010). Like the present case, in those instances Citizens’ motions to dismiss the section 624.155 action were denied by the trial court. In undertaking immediate review of those rulings, the fifth district referred to the supreme court’s earlier decision in Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So. 2d 1113 (Fla. 1976), and treated the matter as a question of the trial court’s subject matter jurisdiction. But the fifth district did not refer to or otherwise acknowledge the supreme court’s more recent ruling in Roe, which characterized the jurisdictional theory in Circuit Court of Twelfth Judicial Circuit as an approach which pertained "at one time," but which no longer applied. As Roe suggested, there is no irreparable harm in requiring that appellate consideration of the sovereign immunity claim await the entry of a final judgment.
Without the irreparable harm required for certiorari, and given the supreme court’s repudiation of the Circuit Court of Twelfth Judicial Circuit theory of jurisdiction in Roe, Citizens is not entitled to immediate interlocutory review of the denial of its motion to dismiss San Perdido’s section 624.155 lawsuit.
The dissent began:
I respectfully dissent from the decision to dismiss Citizens’ "Petition for Writ of Prohibition, and Alternatively, Petition for Writ of Certiorari." I would grant the petition and quash the trial court’s order denying Citizens’ motion to dismiss because, as the Fifth District correctly held in Garfinkel, "Citizens is immune from first-party bad faith claims pursuant to Section 627.351(6)([s])1." See 25 So. 3d at 69.
I agree with the majority that prohibition is not the appropriate remedy in this case because Citizens’ claim of immunity does not implicate the trial court’s subject-matter jurisdiction. But I disagree that we lack jurisdiction to consider Citizens’ alternative petition for writ of certiorari. In my view, not only do we have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(3) and 9.100 to consider the petition, but it is incumbent upon us to do so at this time because the trial court’s erroneous order denying Citizens immunity from Respondent’s suit will cause material injury to Citizens that cannot be fully remedied upon plenary appeal. Nothing in Roe compels the decision reached by the majority.
***
I recognize that the injury that Citizens will suffer in this particular case is diminished somewhat by the likelihood that the merits of the immunity issue will be back before this court in relatively short order. Indeed, if and when the issue is raised again by Citizens at the trial court (either through a renewed motion to dismiss or a motion for summary judgment), the court will be obligated to follow the holding in Garfinkel and dismiss Respondent’s bad faith suit against Citizens.
(Emphasis added).  The oral argument in this case was held on May 19, 2010 and will be posted below later today:

Petitioner's Argument

video

Respondent's Argument

video

Petitioner's Rebuttal Argument

video

After the oral argument, the Court entered an order requiring supplemental briefing.  That order is copied below:

Supplemental briefing is hereby requested from the appellant on the question of whether this court may properly consider the merits of the appellant's petition for a writ of prohibition or certiorari, in light of the supreme court's reasoning in Dep't of Education v. Roe, 679 So. 2d 756 (Fla. 1996), and the approval in that case of this court's decision in Dep't of Education v. Roe, 656 So. 2d 507 (Fla. 1st DCA 1995). See also, e.g., School Board of Miami-Dade County v. Leyva, 975 So. 2d 576 (Fla. 3d DCA 2008). The appellant's supplemental brief should be filed within 15 days from the date of this order. The appellee may file a supplemental answer brief on this question, and if it does so that brief should be filed within 10 days of the appellant's service of its supplemental brief.