Citizens Property Ins. Corp. v. Calonge ( 2018 )

Third District Court of Appeal
State of Florida
Opinion filed April 18, 2018.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D16-854; 3D16-1831; 3D16-1456; 3D16-1457; 3D16-1459
Lower Tribunal Nos. 14-32096; 16-3469; 15-30091; 16-6056; 15-15114
________________
Citizens Property Insurance Corporation,
Appellant/Cross-Appellee,
vs.
Rosa Calonge,
Appellee/Cross-Appellant,
and
Wilson Imbert and Judy Imbert, Lazaro Gomez Cruz and Judith
Carreras Lopez, Francisco Granados and Daisy Granados, and
Anthony Calvi,
Appellees.
Appeals from non-final orders from the Circuit Court for Miami-Dade
County, Antonio Arzola, Migna Sanchez-Llorens, and Monica Gordo, Judges.
Link & Rockenbach, P.A., and Kara Berard Rockenbach (West Palm Beach),
for appellant/cross-appellee.
Barnard Law Offices, L.P., and Andrew C. Barnard, for appellees/cross-
appellant.
Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
SCALES, J.
In these five consolidated appeals, we review virtually identical non-final
orders that deny, without elaboration, Appellant Citizens Property Insurance
Corporation’s (“Citizens”) motions to dismiss Appellees’1 claims. While Citizens’s
dismissal motions assert its sovereign immunity from Appellees’ claims, we do not
have jurisdiction to review the trial courts’ unelaborated non-final orders denying
Citizens’s dismissal motions. Therefore, we dismiss each of Citizens’s appeals.
I. Relevant Background
Citizens sought to dismiss various counts in Appellees’ complaints. Citizens
argued that these counts, irrespective of how they were couched, constitute
disguised, first-party bad faith claims for which Citizens enjoys sovereign immunity
under section 627.351(6)(s) of the Florida Statutes and the case of Citizens Property
Insurance Corp. v. Perdido Sun Condominium Association, 164 So. 3d 663 (Fla.
2015). The trial courts adjudicated each such dismissal motion by entering an
1
Each of the five appellees, whom we refer to collectively as “Appellees,” filed a
claim with Citizens seeking insurance proceeds for residential property damage.
After disputes arose regarding Appellees’ insurance claims, each appellee filed a
complaint in circuit court. While each complaint contains somewhat different
allegations and counts, because of our ruling, the variations in Appellees’ allegations
are not relevant to our holding. All five complaints yielded trial court orders that
involve the same legal question for our consideration, and therefore, this opinion
affects each appellee’s case in the same way.
2
unelaborated order that simply denied Citizens’s motion. Citizens appealed each of
these non-final orders.
In its initial briefs to this Court, Citizens argues that the trial court erred by
denying its dismissal motions; and, because Citizens’s dismissal motions were
premised upon sovereign immunity claims, the non-final dismissal orders are subject
to interlocutory review. See Fla. R. App. P. 9.130(a)(3)(C)(xi). In their answer briefs
to this Court, Appellees each assert, among other things, that, because the appealed
interlocutory orders are unelaborated, the orders lack the requisite determination to
allow appellate review under rule 9.130(a)(3)(C)(xi). We consolidated these appeals
because the threshold jurisdictional issue for each appeal is the same: whether we
have jurisdiction to review an unelaborated non-final order denying Citizens’s
motion to dismiss when the motion asserts entitlement to sovereign immunity.
II. Analysis
Our appellate jurisdiction to review non-final orders is limited to only those
orders specifically scheduled in rule 9.130(a)(3). See Keck v. Eminisor, 104 So. 3d
359, 363-64 (Fla. 2012). Citizens relies on rule 9.130(a)(3)(C)(xi) to vest this Court
with jurisdiction to hear the otherwise non-reviewable interlocutory orders. This rule
reads as follows: “Appeals to the district courts of appeal of non-final orders are
limited to those that . . . determine . . . that, as a matter of law, a party is not entitled
to sovereign immunity.”
3
In each order on appeal, the trial court states merely that Citizens’s motion to
dismiss was denied. In none of these orders did the trial court state as a basis for its
denial that Citizens was not entitled to the sovereign immunity shield from suit.
While the dissent assiduously argues to the contrary, we are constrained by this
Court’s jurisprudence and the text of the relevant rule to limit our jurisdictional
inquiry to the four corners of the appealed order. Put another way, in making our
jurisdictional determination, we look only to the face of the trial court’s order and
do not penetrate the record with a searchlight to divine whether the trial court’s
undisclosed rationale warrants appellate review. Miami-Dade Cty. v. Pozos, 42 Fla.
L. Weekly D418 (Fla. 3d DCA Feb. 15, 2017); Citizens Prop. Ins. Corp. v. Sosa,
215 So. 3d 90 (Fla. 3d DCA 2016).
A. This Court’s Jurisprudence
In Pozos, the plaintiff claimed that the County was liable for personal injuries
suffered after plaintiff was shot at a County park. The County filed a summary
judgment motion asserting sovereign immunity, and the trial court entered an
unelaborated order denying the County’s motion. The County appealed this non-
final order, arguing that this Court had jurisdiction to review the trial court’s
unelaborated order because the order impliedly determined, as a matter of law, that
the County was not sovereignly immune from Pozos’s claim. This Court dismissed
the County’s appeal for lack of jurisdiction because the trial court’s order did not
4
provide an explicit determination on the availability of the immunity defense, and
because Florida’s district courts are “without authority to make the determination on
our own accord.” Pozos, 42 Fla. L. Weekly D418.
In Sosa, which bears some similarity to the instant case, Citizens appealed a
non-final order in which the trial court denied Citizens’ motion to strike certain bad
faith allegations and to dismiss and/or strike certain counts of the complaint. On
appeal, Citizens “characterize[ed] the trial court’s order as one determining that it is
not entitled to sovereign immunity as a matter of law . . . .” Sosa, 215 So. 3d at 91.
This Court dismissed the appeal for lack of jurisdiction, again because the trial
court’s order did not address sovereign immunity specifically. Id.
Both Pozos and Sosa follow Florida Supreme Court jurisprudence dictating
that Florida’s district courts do not have jurisdiction to review a non-final order
addressing immunity unless the order specifically states that the immunity defense
is not available. Hastings v. Demming, 694 So. 2d 718, 720 (Fla. 1997).
While Hastings and its progeny2 involve workers’ compensation immunity rather
than sovereign immunity, the jurisdictional rules authorizing the interlocutory
appeals of orders relating to workers compensation immunity and sovereign
immunity are identical in their wording, and therefore are analogous.3 Because the
2
See Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812 (Fla. 2004); Fla.
Dept. of Corrections v. Culver, 716 So. 2d 768 (Fla. 1998).
5
drafters of these two rules chose to employ virtually identical language to define the
contours of our interlocutory jurisdiction in the immunity context, we have no
difficulty applying case law from workers’ compensation immunity jurisprudence
to inform our analysis of sovereign immunity jurisdiction. See State v. Hearns, 961
So. 2d 211, 217 (Fla. 2007) (“We have held that where the Legislature uses the exact
same words or phrases in two different statutes, we may assume it intended the same
meaning to apply.”)
We do note that Hastings, Reeves and Culver arose from summary judgment
determinations, yet the Florida Supreme Court has not distinguished between an
order on a motion for summary judgment and an order on a motion to dismiss.
Indeed, Reeves cites approvingly to Martin Electronics, Inc., v. Glombowski, 705
So. 2d 26, 30 (Fla. 1st DCA 1997), in which the First District held that an
unelaborated order deriving from a motion to dismiss and making no specific
immunity determination, was not an appealable order. Reeves, 889 So. 2d at 821.
B. Text of the Relevant Rule
Our reading of rule 9.130(a)(3)(C)(xi) – preventing interlocutory review of an
unelaborated order – is consistent with the text of the rule, as well as the requirement
3
Rule 9.130, as it relates to workers’ compensation immunity, reads as follows:
“Appeals to the district courts of appeal of non-final orders are limited to those that
. . . determine . . . that, as a matter of law, a party is not entitled to workers’
compensation immunity.” Fla. R. App. P. 9.130(a)(3)(C)(v).
6
that we are to construe narrowly the categories of non-final orders subject to
interlocutory appeal. Walker v. Fla. Gas Transmission Co., 134 So. 3d 571, 572 (Fla.
1st DCA 2014). The presence of the word “determine” in the rule is significant. The
“non-final order[]” must “determine” that “a party is not entitled to sovereign
immunity.” Thus, the plain text of the rule requires that, for interlocutory review to
be available, the order itself must actually adjudicate the sovereign immunity issue
against the allegedly immune party. Nothing in the rule suggests that we may adduce
or surmise such a determination by reviewing documents in the record apart from
the trial court’s written order. Such a search for jurisdiction within the record would
lead to imprecise and even presumptuous conclusions. To allow a district court to
make its jurisdictional determination by engaging in its own examination of the
underlying record essentially would allow the district court to make the sovereign
immunity determination in the first instance. Surely, such a search for jurisdiction
would undermine the purpose of rule 9.130(a)(3) itself, which is to expressly
circumscribe the categories of non-final orders subject to interlocutory
review. Pozos, 42 Fla. Weekly D418.
III. Conclusion
The trial courts’ non-final orders below merely said: “Denied.” These orders
did not determine, as a matter of law, that Citizens is not entitled to sovereign
7
immunity. Therefore, we lack jurisdiction to review the challenged orders under rule
9.130(a)(3)(C)(xi), and dismiss the consolidated appeals.4
Dismissed.
SUAREZ, J., concurs.
4
We are not unsympathetic to Citizens’s argument. After all, immunity from suit is
significantly different from having a mere defense to an action; an immune party
should not be forced to stand trial or otherwise face the burdens of litigation. See
Tucker v. Resha, 648 So. 2d 1187, 1189-90 (Fla. 1994). The idea that a defendant
cannot be “re-immunized” after an erroneous denial of immunity underpins the
appellate rules allowing for interlocutory review of an order determining that a party
is not entitled to immunity. Id. at 1189. It is for this reason, when a party asserts
entitlement to immunity, we strongly encourage trial courts to elaborate on their non-
final orders denying such immunity to allow the alleged immune party interlocutory
review of such orders.
8
Citizens Property Insurance Corporation v. Rosa Calonge, etc.
Case Nos. 3D16-854, 3D16-1831, 3D16-1456, 3D16-1457 & 3D16-1459
ROTHENBERG, C.J. (dissenting).
In these five consolidated appeals, 5 we are presented with two questions: (1)
whether we have appellate jurisdiction to review non-final orders that deny, without
elaboration, motions to dismiss that only raise the issue of sovereign immunity from
suit; and (2) if we reach the merits, whether the trial court erred by denying Citizens
Property Insurance Corporation’s (“Citizens”) motion to dismiss the breach of
contract and declaratory judgment claims pled in the five separate complaints filed
by the Appellees, claims from which Citizens argues it is sovereignly immune
because they are statutory bad-faith claims. As will be explained more fully below,
I would answer both questions in the affirmative, reverse the orders on appeal, and
remand with instructions to the trial courts to enter orders granting Citizens’ motions
to dismiss without prejudice to allow the Appellees to file amended complaints.
BACKGROUND
After the Appellees allegedly sustained accidental property damage to their
real properties, they sued their insurer, Citizens, alleging various causes of action.
Although the procedural history and the complaints in each of these five cases are
5
I refer to the Appellees in these five appeals collectively as “the Appellees” because
(1) they are represented by the same legal counsel, (2) the allegations in the relevant
counts in their complaints implicate the same legal questions, and (3) the end result
of this opinion affects them all in the same way.
9
somewhat different, the common issue in these appeals is whether the trial court
erred by denying Citizens’ motion to dismiss the breach of contract and declaratory
judgment counts brought in each of the Appellees’ complaints.
In each case, Citizens moved to dismiss the breach of contract and declaratory
judgment claims, arguing that these claims were actually disguised claims for
statutory bad-faith under section 624.155(1), Florida Statutes (2014), for which
Citizens is entitled to sovereign immunity as a matter of law. See Citizens Prop. Ins.
Corp. v. Perdido Sun Condo. Ass’n, 164 So. 3d 663, 667 (Fla. 2015) (holding that
Citizens has sovereign immunity from suit regarding statutory bad-faith claims).
Although the trial court judges in these five cases entered orders denying Citizens’
motions to dismiss the breach of contract and declaratory judgment claims, they
failed to elaborate as to their reasoning either at the hearings on Citizens’ motions
or in the orders they issued. 6 Citizens timely appeals these non-final orders denying
its motions to dismiss pursuant to Florida Rule of Appellate Procedure
9.130(a)(3)(C)(xi), which provides that a party may appeal to the district court non-
final orders that “determine . . . that, as a matter of law, a party is not entitled to
sovereign immunity.”
I. Jurisdiction
6
While in some of the cases, Citizens also moved to dismiss other counts in the
Appellees complaints for different reasons, the trial court’s rulings on those counts
are not before us.
10
The majority dismisses Citizens’ appeals for lack of jurisdiction based on its
conclusion that the orders are not appealable under rule 9.130(a)(3(C)(xi) because
the trial court’s orders do not expressly state that as a matter of law, Citizens is not
entitled to sovereign immunity. I respectfully submit that the majority’s
interpretation of rule 9.130(a)(3)(C)(xi) is unsupported by the plain language of the
rule, the purpose of the rule, the relevant case law, and common sense. I would
therefore deny each of the Appellees’ motions to dismiss the appeals and decide
these appeals on the merits.
Our standard of review for the interpretation of procedural rules is de
novo. Strax Rejuvenation & Aesthetics Inst., Inc. v. Shield, 49 So. 3d 741, 742 (Fla.
2010). “Procedural rules should be given a construction calculated to further justice,
not to frustrate it.” Id. at 743 (quoting Singletary v. State, 322 So. 2d 551, 555 (Fla.
1975)). “Our courts have long recognized that the rules of construction applicable to
statutes also apply to the construction of rules.” Brown v. State, 715 So. 2d 241, 243
(Fla. 1998).
A. The majority’s interpretation is unsupported by the text of the rule
As the majority correctly states, we are constrained by the text of the rule.
Rule 9.130(a)(3)(C)(xi) provides as follows: “Appeals to the district courts of appeal
of non-final orders are limited to those that . . . determine . . . that, as a matter of law,
a party is not entitled to sovereign immunity.” This text does not contain any words
11
limiting the appeal of non-final orders to those orders that expressly determine that
a party is not entitled to sovereign immunity. The word “determination,” from which
the word “determine” derives, simply means “[t]he act of deciding something
officially.” Determination, Black’s Law Dictionary (10th ed. 2014); see also Legally
Determined, Black’s Law Dictionary (10th ed. 2014) (defining “legally determined”
as “decided by legal process”); Charter Sch. USA, Inc. v. John Doe No. 93, 152 So.
3d 657, 661 (Fla. 3d DCA 2014) (concluding, in the context of analyzing Florida
Rule of Civil Procedure 1.550, that “‘determined’ means the point in time when the
trial judge, in this case signed an order ruling on the school’s post-trial motions”).
Indeed, if the word “determined” somehow signified an express statement, then the
phrase “expressly determined” would be redundant. It is therefore clear from the text
of rule 9.130(a)(3)(C)(xi) that a party’s ability to appeal non-final orders under the
rule is not as limited as the majority has found. In fact, it is only possible to reach
the majority’s conclusion if we add language to the rule.
B. The majority’s interpretation is in conflict with the purpose of the rule
The purpose behind amending rule 9.130 to include rule 9.130(a)(3)(C)(xi)
was to give meaningful effect to sovereign immunity from suit. This purpose would
be arbitrarily frustrated if only those orders expressly denying entitlement to
sovereign immunity were appealable. The Florida Supreme Court has specifically
noted the importance of providing interlocutory review to parties who are entitled to
12
sovereign immunity from suit but were denied that right at the trial court
level. See Keck v. Eminisor, 104 So. 3d 359, 360 (Fla. 2012).
In Keck, when addressing whether interlocutory review should be available
to defendants to appeal non-final orders denying motions for summary judgment
based on a claim of sovereign immunity under section 768.28(9)(a), Florida Statutes
(2005), the Florida Supreme Court stated the following:
[I]f a defendant who is entitled to the immunity granted in section
768.28(9)(a) is erroneously named as a party defendant and is required
to stand trial, that individual has effectively lost the right bestowed by
statute to be protected from even being named as a defendant. If orders
denying summary judgment based on claims of individual
immunity from being named as a defendant under section
768.28(9)(a) are not subject to interlocutory review, that statutory
protection becomes essentially meaningless for the individual
defendant.
Id. at 366 (emphasis added). Thus, the Florida Supreme Court recommended a
change to the rules of appellate procedure to allow for appeals “where an individual
defendant who claims immunity under 768.28(9)(a) is denied that immunity and the
issue turns on a matter of law.” Id. at 369. Specifically, the Court requested that the
Florida Bar Appellate Court Rules Committee consider “whether the categories of
non-final orders in rule 9.130(a)(3) should be expanded to include the denial of any
claim of immunity where the question presented is solely a question of law.” Id.
at 370 (emphasis added). Upon recommendations from the Florida Bar Appellate
Court Rules Committee, the Florida Supreme Court adopted rule 9.130(a)(3)(C)(xi),
13
which now permits appeals from non-final orders that determine that, as a matter of
law, a party is not entitled to sovereign immunity.
In order for a party’s entitlement to sovereign immunity from suit to
constitute an effective protection, the party must have a meaningful ability to assert
its entitlement to sovereign immunity at the very beginning of litigation. To hold
that the non-final order must expressly state that a party is not entitled to sovereign
immunity, where it is otherwise clear that the trial court made such a determination,
would arbitrarily restrict a party’s ability to appeal an adverse ruling regarding its
entitlement to sovereign immunity from suit in circumstances where the trial court
merely issues an unelaborated order denying a motion to dismiss that only raises the
party’s claim to sovereign immunity from suit. To withhold an appellate remedy to
a party who is sovereignly immune from suit as a matter of law until the case has
been fully litigated, simply because the trial court has failed or refused to issue an
elaborated order, is contrary to the very purpose and intent of the rule change.
C. The case law does not support the majority’s position
The majority cites to two opinions issued by this Court in support of its
position that this Court lacks jurisdiction over the trial court’s unelaborated orders
denying Citizens’ motions to dismiss: Citizens Property Insurance Corp. v. Sosa,
215 So. 3d 90 (Fla. 3d DCA 2016), and Miami-Dade County v. Pozos, 42 Fla. L.
Weekly D418 (Fla. 3d DCA Feb. 5, 2017). Both cases are easily
14
distinguishable. Pozos is not yet final on appeal, and the trial court specifically
stated that it was not ruling on sovereign immunity in Sosa. And, as will be
discussed below, the Florida Supreme Court has reviewed unelaborated orders
denying motions to dismiss where it is clear that the trial court determined, as a
matter of law, that a party was not entitled to immunity.
(1) Sosa
In Sosa, Citizens moved to strike the bad-faith allegations and to dismiss
and/or strike counts II and III based on its sovereign immunity from bad-faith
claims. Sosa, 215 So. 3d at 91. However, the record in Sosa reflected that the trial
court did not even reach the issue of sovereign immunity when it denied Citizens’
motion to dismiss. Id. Instead, the trial court abated or stayed any action on those
counts until the issues of coverage and liability were resolved. Id. Because the trial
court did not rule on Citizens’ sovereign immunity claim, the majority’s reliance on
that case is misplaced.
(2) Pozos
Pozos, although not yet final on appeal, is also distinguishable. First, Miami-
Dade County raised the issue of its sovereign immunity in a motion for summary
judgment rather than in a motion to dismiss. Whereas a motion to dismiss is
designed to test the legal sufficiency of the complaint assuming that the alleged facts
are true, Minor v. Brunetti, 43 So. 3d 178, 179 (Fla. 3d DCA 2010), a motion for
15
summary judgment usually rests on whether the evidence developed in the record
supports only one set of facts that entitles a party to judgment as a matter of law.
In Pozos, this Court found that it lacked jurisdiction because the trial court denied
the County’s motion for summary judgment without specifying whether it
determined, as a matter of law, that the County was not entitled to sovereign
immunity or whether it found that there were “disputed issues of material fact or
ongoing discovery that would render summary judgment premature.” Pozos at *5.
Second, two different issues were argued in Pozos: (1) whether the County
was entitled to summary judgment based on its claim of sovereign immunity; and/or
(2) whether there were material issues of disputed fact as to whether the County
owed the plaintiff a duty of care. Because the trial court issued an unelaborated
order, the majority found that it was impossible to determine the trial court’s
reasoning for denying the County’s motion for summary judgment.
D. The Florida Supreme Court
(1) Beach Community Bank
The majority’s interpretation of rule 9.130(a)(C)(xi) is also in conflict with
the Florida Supreme Court’s interpretation of the rule. In Beach Community Bank
v. City of Freeport, Florida, 150 So. 3d 1111 (Fla. 2014), the Florida Supreme Court
accepted jurisdiction to review the First District Court of Appeal’s decision in City
of Freeport v. Beach Community Bank, 108 So. 3d 684 (Fla. 1st DCA 2013). The
16
City of Freeport moved to dismiss the complaint based on its immunity from suit.
The trial court issued an order denying the City’s motion to dismiss. A review of
the record before the First District and the Florida Supreme Court reflects that the
order in question merely stated that the City’s “Motion to Dismiss with Prejudice
is denied and Defendant shall file a responsive pleading within 20 days of the
date of this Order.” (emphasis added).
The City filed a petition for writ of certiorari to review the non-final order on
the basis that the City was entitled to sovereign immunity as a matter of law and thus
the trial court departed from the essential requirements of law by denying its motion
to dismiss. City of Freeport, 108 So. 3d at 686. The First District agreed with the
City, granted the petition and quashed the order under review. Id. at 691. On review
to the Florida Supreme Court, the original question was whether the District Court
could exercise certiorari jurisdiction to review the trial court’s non-final
order. Beach Cmty. Bank, 150 So. 3d 1112. However, because the Florida Bar
Appellate Court Rules Committee’s proposed amendment to rule 9.130 was pending
before the Florida Supreme Court and the Court concluded that the “case falls
squarely within the new rule amendment,” the Court determined “that the City
should be entitled to the benefit of the new rule.” Id. at 1113. Specifically, the Court
held that the proposed amendment “answers the question that the City asks this Court
to confront in this case. This amendment permits district courts to review
17
nonfinal orders of decisions determining entitlement to sovereign immunity
where the case involves a pure legal question.” Id. (emphasis added).
Importantly, although the trial court’s order simply denied the City’s motion
to dismiss and ordered the City to file responsive pleadings within twenty days, and
the order did not include the language that the denial of the motion to dismiss on the
basis of sovereign immunity was a denial as a matter of law, the First District
reviewed the order and determined that the City was entitled to sovereign immunity
and the Florida Supreme Court reviewed the same order and agreed. Beach Cmty.
Bank, 150 So. 3d at 1114. Thus, the Florida Supreme Court quashed the First
District’s decision to the extent that it resolved the issue based on certiorari review,
but approved the decision based on the amendment to rule 9.130, Id. at 1114-15, and
issued its opinion on the very same day that it approved the amendment to rule 9.130.
(2) Keck
The Florida Supreme Court’s opinion in Keck also suggests that the majority’s
interpretation of rule 9.130(a)(3)(C)(xi) is incorrect. In Keck, the trial court issued
an order denying Keck’s motion for summary judgment based on his claim of
sovereign immunity. Keck, 104 So. 3d at 362. Keck sought review, but because
rule 9.130 had not yet been amended to permit interlocutory appeals of trial court
orders denying summary judgment, Keck petitioned the First District for a writ of
certiorari. Id. Because the First District concluded that certiorari review was not
18
proper, it denied the petition without addressing the merits of the petition. Id. The
First District, however, certified a question to the Florida Supreme Court; the Florida
Supreme Court accepted jurisdiction; and the Court rephrased the certified question
as follows:
Should review of the denial of a motion for summary judgment based
on a claim of individual immunity under section 768.28(9)(a), Florida
Statutes, await the entry of a final judgment in the trial court to the
extent that the order turns on an issue of law?
Id. at 363.
In answering the certified question, the Florida Supreme Court noted that
in Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994), the Court had “examined whether
to expand the category of non-final appealable orders to include orders denying
summary judgment based on a qualified immunity claim,” and because of the nature
of the rights involved, interlocutory review must be available to an individual whose
claim of qualified immunity was denied by the trial court. Keck, 648 So. 2d at 364.
The Court specifically noted:
Because qualified immunity of public officials involves immunity from
suit rather than a mere defense to liability, we reasoned that immunity
from suit is effectively lost if a case is erroneously permitted to go to
trial because a trial court’s order denying qualified immunity cannot be
reviewed on appeal from a final judgment as the public official cannot
be re-immunized if erroneously required to stand trial or face the other
burdens of litigation.
Id. at 364 (emphasis in original) (internal quotations omitted) (citing Tucker, 648
So. 2d at 1189). The Florida Supreme Court went on to recognize that in Tucker,
19
[w]e stressed that if orders denying summary judgment based upon
claims of qualified immunity are not subject to interlocutory review,
the qualified immunity of public officials is illusory and the very policy
that animates the decision to afford such immunity is thwarted. We
held that an order denying summary judgment based upon a claim of
qualified immunity should be subject to interlocutory review to the
extent that the order turns on an issue of law.
Keck, 104 So. 3d at 365 (internal citations and quotations omitted).
The Florida Supreme Court in Keck, therefore, concluded that:
[I]f a defendant who is entitled to the immunity granted in section
768.28(9)(a) is erroneously named as a party defendant and is required
to stand trial, that individual has effectively lost the right bestowed by
statute to be protected from even being named as a defendant. If orders
denying summary judgment based on claims of individual
immunity from being named as a defendant under section
768.28(9)(a) are not subject to interlocutory review, that statutory
protection becomes essentially meaningless for the individual
defendant.
For the above reasons, we answer the rephrased question in the
negative and hold that an order denying summary judgment based
on a claim of individual immunity under section 768.28(9)(a) is
subject to interlocutory review where the issue turns on a question
of law.
Keck, 104 So. 3d at 366 (emphasis added).
Based on the Florida Supreme Court’s ruling in Keck, Justice Pariente, in her
concurring opinion, recommended that the Florida Bar Appellate Court Rules
Committee submit a proposed amendment, as previously discussed in this opinion,
and that when it addressed the rule amendment, that it do so more broadly to address
interlocutory appeals of immunity claims in a comprehensive manner. Id. at 369.
20
While I recognize that the Florida Supreme Court was addressing individual
immunity under section 768.28(9)(a), rather than sovereign immunity granted under
section 627.351(6)(s), in Keck, Justice Pariente asked the Florida Bar Appellate
Court Rules Committee to address interlocutory appeals of immunity claims in a
comprehensive manner, and rule 9.130(a)(3)(C)(xi) was later amended in direct
response to Justice Pariente’s request. It also makes no sense to treat orders that
deny an individual’s immunity from suit any differently than orders denying an
entity’s immunity from suit. In both instances, the defendant who is entitled to
immunity from suit as a matter of law should not be forced to litigate the plaintiff’s
claims simply because the trial court issues an unelaborated order.
E. The majority’s reliance on cases involving workers’ compensation
immunity is misplaced
In support of its argument that the trial court must expressly state in its non-
final order that it is determining, as a matter of law, that a party is not entitled to
sovereign immunity, the majority relies on cases addressing workers’ compensation
immunity under rule 9.130(a)(3)(C)(v), which states that a party may appeal a non-
final order determining “that, as a matter of law, a party is not entitled to workers’
compensation immunity.” The Florida Supreme Court, in construing rule
9.130(a)(3)(C)(v), has stated that “[n]onfinal orders denying summary judgment on
a claim of workers’ compensation immunity are not appealable unless the trial court
order specifically states that, as a matter of law, such a defense is not available to a
21
party.” Hastings v. Demming, 694 So. 2d 718, 720 (Fla. 1997) (emphasis
added); Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 821 (Fla. 2004)
(stating that “a district court does not have jurisdiction to review a nonfinal order
denying summary final judgment unless the trial court’s order explicitly states that
the defendant will not be entitled to present a workers’ compensation immunity
defense at trial”) (emphasis added).
This case law is highly distinguishable, as is rule 9.130(a)(3)(C)(v). Unlike
Citizens’ claim for entitlement to sovereign immunity from suit in the instant cases,
workers’ compensation immunity is an affirmative defense, involving factual
issues that typically preclude a motion to dismiss. Gen. Cinema Beverages of Miami,
Inc. v. Mortimer, 689 So. 2d 276, 277 (Fla. 3d DCA 1995) (“Establishment of
workers’ compensation immunity usually requires the employer to bring forth facts
from outside the four corners of the complaint, which necessarily requires a motion
for summary judgment.”); Eiler v. Camp Dresser & McKee, Inc., 542 So. 2d 441,
442 (Fla. 5th DCA 1989) (stating that “the exclusivity provision set forth in section
440.11 of the Workers’ Compensation Act is an affirmative defense which cannot
be raised by a motion to dismiss unless the allegations of a prior pleading in the case
demonstrate the existence of such a defense”); see also Ruiz v. Aerorep Grp. Corp.,
941 So. 2d 505, 508 (Fla. 3d DCA 2006) (“Although workers’ compensation
immunity usually cannot be raised in a motion to dismiss, an exception exists
22
allowing the defense to be raised in a motion to dismiss where the defense appears
on the face of the complaint.”).
Thus, in the context of an order denying, without explanation, a motion that
is premised on the affirmative defense of workers’ compensation immunity, it may
be difficult to determine whether the trial court denied a party’s claim for workers’
compensation immunity due to factual issues that must be resolved prior to
adjudicating the legal issue of immunity, or whether the trial court determined, as a
matter of law, that a party is not entitled to the workers’ compensation immunity
defense. By contrast, in the instant cases, whether Citizens is entitled to sovereign
immunity from suit with regard to statutory bad-faith claims involves no factual
issues, and the legal question can readily be resolved by a motion to dismiss as soon
as the complaint is filed. That is because Citizens is immune from having to defend
itself against all first-party bad-faith claims regardless of the facts alleged.
Additionally, even in the workers’ compensation immunity context, at least
one of our sister courts has raised a significant concern about parties and trial courts
intentionally obfuscating the real justifications for orders denying a party’s claim for
workers’ compensation immunity. In Martin Electronics, Inc. v. Glombowski, 705
So. 2d 26 (Fla. 1st DCA 1997) (en banc), the First District Court of Appeal held that
it lacked appellate jurisdiction to review a non-final order denying a motion to
dismiss. Id. at 27. The trial court below determined that there were insufficient facts
23
to decide the issue of workers’ compensation immunity, but specifically noted that
“[t]his determination does not mean that this Court may not ultimately be presented
with sufficient facts to determine this issue as a matter of law.” Id. at 28. On appeal,
the majority held, in applying the Florida Supreme Court’s decision in Hastings, that
a non-final order denying a motion to dismiss based on workers’ compensation
immunity must expressly determine, as a matter of law, that workers’ compensation
immunity is unavailable. Id. at 29-30. However, Judge Wolf, specially concurring,
raised a significant concern regarding appeals from orders denying motions to
dismiss, as opposed to orders denying motions for summary judgment, which deny
a party’s claim for workers’ compensation immunity, and stated as follows:
In these cases, there can be no disputed facts. The decision concerning
the motion must assume that all the facts in the complaint are taken as
true and all inferences are drawn in favor of the plaintiff. Thus, the
denial of the motion cannot be based on disputed facts, but must
constitute a legal ruling on a given set of facts.
Id. at 31-32 (citation omitted).
Judge Wolf’s reasoning is even more persuasive in the context of Citizens’
sovereign immunity. The Appellees do not contest that Citizens is entitled to
sovereign immunity as a matter of law as to all statutory bad-faith claims. Thus, the
only issue before the trial courts was whether the complaints contained bad-faith
allegations from which Citizens was immune. Unlike a motion for summary
24
judgment, this legal determination cannot be based upon disputed facts at the
pleading stage on a motion to dismiss. Further, as Judge Wolf aptly notes:
As a practical matter, orders denying motions to dismiss or motions for
summary judgments will often be drafted by a plaintiff’s attorney or by
a trial judge who may be gun-shy of an appeal. We can expect that such
orders will simply deny the motion without explanation or be drafted to
be ambiguous. Thus, many parties entitled to immunity may be
forced to go to trial.
Id. at 31 (Wolf, J., specially concurring) (emphasis added). This last sentence rings
especially true in the instant cases. If Citizens is denied appellate review of the orders
at issue in these appeals, it will be forced to litigate a plethora of claims, although,
as will be shown infra, it is in fact sovereignly immune from each of them.
As reflected in this discussion, workers’ compensation immunity substantially
differs from sovereign immunity from suit as invoked by Citizens in the instant
appeals. Citizens’ claim for sovereign immunity from suit turns on the allegations in
the complaints, rather than on an affirmative defense that requires proof of specific
facts. Any analogy between rule 9.130(a)(3)(C)(xi) and rule 9.130(a)(3)(C)(v) is
accordingly unpersuasive.
F. The majority’s interpretation of the rule will lead to an absurd result
Common sense and logic militate against the majority’s interpretation of the
rule. “[T]he rules of construction applicable to statutes also apply to the construction
of rules.” Brown, 715 So. 2d at 243. Thus, “the Court should not interpret a [rule] in
a manner resulting in unreasonable, harsh, or absurd consequences.” Fla. Dep’t of
25
Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1270 (Fla. 2008). If
a party raises only one argument in a motion to dismiss a complaint, an argument
that requires the trial court to make a legal determination based on the allegations
in the complaint, as opposed to developed or undeveloped factual matters, and the
trial court denies the motion to dismiss, then the trial court has necessarily made a
legal determination as to the legal argument raised in the motion. If that legal
argument was a party’s claim that it is entitled to sovereign immunity from
defending itself from the allegations in the complaint, then the trial court, by denying
the motion, has determined, as a matter of law, that the party is not entitled to
sovereign immunity based on the allegations in the complaint.
In the instant cases, it is the allegations themselves that form the foundation
for Citizens’ motions to dismiss. It is irrelevant how the facts and evidence might
develop during litigation. Citizens has only argued that it is sovereignly immune, as
a matter of law, from defending against the Appellees’ allegations of bad-faith. Thus,
by denying the motions to dismiss, the trial courts have necessarily determined, as a
matter of law, that Citizens is not sovereignly immune from such allegations. These
legal determinations are reviewable under rule 9.130(a)(3)(C)(xi).
G. Conclusion as to the issue of jurisdiction
In conclusion, rule 9.130(a)(3)(C)(xi) does not limit appeals to non-final
orders that expressly state that the trial court has determined, as a matter of law, that
26
a party is not entitled to sovereign immunity because: (1) the plain meaning of the
text of rule 9.130(a)(3)(C)(xi) does not specify that such orders contain any express
language; (2) the purpose of the amendment of rule 9.130 to include subsection
9.130(a)(3)(C)(xi) was to avoid vitiating the protections of sovereign immunity from
suit by allowing appeals from non-final orders denying a party’s claim that it is
entitled to such immunity; (3) the case law does not support the majority’s
interpretation of the rule; (4) rule 9.130(a)(3)(C)(v), in the fact-heavy workers’
compensation immunity context, cannot be analogized to rule 9.130(a)(3)(C)(xi),
which covers the subject of entitlement to sovereign immunity; and (5) to conclude
otherwise would lead to an absurd construction of rule 9.130(a)(3)(C)(xi), as it
would arbitrarily force a party to litigate and defend against a claim from which it
has sovereign immunity from suit.7 As the Florida Supreme Court has stated, a non-
final order will be appealable pursuant to rule 9.130(a)(3)(C)(xi) if it is clear that the
7
Again, none of this is to say that an order denying a party’s claim for sovereign
immunity is appealable per se. In some circumstances, if it is possible that there are
factual issues in dispute concerning the existence of sovereign immunity, then rule
9.130(a)(3)(C)(xi) does not allow an appeal from a non-final order that does not
elaborate the basis for the trial court’s ruling in denying the motion to dismiss. See
Pozos, 42 Fla. L. Weekly D418 at *5. Similarly, if it is clear that the trial court did
not address the issue of sovereign immunity, such as where the trial court abates its
decision as to sovereign immunity, then rule 9.130(a)(3)(C)(xi) does not permit
appellate review. Sosa, 215 So. 3d at 91. However, neither of those circumstances
are present here.
27
order determines “entitlement to sovereign immunity where the case involves a
pure legal question.” Beach Cmty. Bank, 150 So. 3d at 1113 (emphasis added).
Accordingly, I respectfully disagree with the majority’s conclusion that we
lack jurisdiction to review the unelaborated non-final orders denying Citizens’
motions to dismiss in the instant cases where it is clear that the trial courts rejected,
as a matter of law, Citizens’ claims that it is entitled to sovereign immunity from the
bad-faith allegations in the complaints.
II. Immunity
Although the majority has concluded that we lack jurisdiction to review the
orders on appeal, I have chosen to address the merits in my dissent in order to
demonstrate why we should not treat unelaborated orders as non-reviewable orders.
If we are precluded from reviewing the five non-final orders in these consolidated
interlocutory appeals, Citizens, which is entitled to sovereign immunity from
defending itself against first-party bad-faith claims, will be forced to litigate the
plaintiffs’ claims until final judgments are rendered solely because the trial courts
issued unelaborated orders. Thus, Citizens is being denied the very protection it was
granted by statute. Citizens moved to dismiss two counts in each of the Appellees’
complaints, which are styled as breach of contract and declaratory judgment claims,
but which rely on first-party bad-faith allegations as the basis for relief, and Citizens
is sovereignly immune from such first-party bad-faith claims. Because the
28
Appellees’ breach of contract and declaratory judgment counts actually allege first-
party bad-faith regarding Citizens’ claims handling process, the trial courts erred by
denying Citizens’ motions to dismiss these claims. These orders, if reviewable on
appeal, would therefore necessarily require reversal on appeal.
A. Citizens’ immunity from first-party bad-faith causes of action
By way of necessary background, I note that first-party bad-faith causes of
action did not exist in the common law, but were created by section 624.155 of the
Florida Statutes. See Citizens Prop. Ins. Corp. v. Perdido Sun Condo. Ass’n, 164 So.
3d 663, 667 (Fla. 2015). Section 624.155(1)(a)1. provides:
(1) Any person may bring a civil action against an insurer when such
person is damaged:
(a) By a violation of any of the following provisions by the insurer:
1. Section 626.9541(1)(i), (o), or (x)[.]
Section 626.9541(1)(i), Florida Statutes, in turn, includes a list of unfair claim
settlement practices that may, if properly pled, form the basis of a first-party bad-
faith cause of action. For example, allegations that the insurer “fail[ed] to adopt and
implement standards for the proper investigation of claims” and “den[ied] claims
without conducting reasonable investigations based upon available information,” are
29
elements in support of a party’s claim that the insurer acted in bad-faith.8 §§
626.9541(1)(i)(3)(a, d).
However, Citizens is entitled to sovereign immunity from these first-party
bad-faith allegations. See § 627.351(6)(s)1., Fla. Stat. (“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 . . . for any action taken by them
in the performance of their duties or responsibilities under this subsection.”)
(emphasis added); Perdido Sun Condo. Ass’n, 164 So. 3d at 668 (holding that the
Legislature’s waiver of Citizens’ sovereign immunity from suit did not include first-
party bad-faith claims brought pursuant to section 624.155(1)). To reiterate, such
immunity is an immunity from suit, which means that the cause of action may not
be brought against Citizens at all and that Citizens is immune from having to defend
itself against such claims. Citizens Prop. Ins. Corp. v. Garfinkel, 25 So. 3d 62, 64
(Fla. 5th DCA 2009) (“The Legislature . . . endowed Citizens with immunity against
all liability and suit apart from five specific exceptions[.]”) (emphasis added),
approved of by Perdido Sun Condo. Ass’n, 164 So. 3d at 667, disapproved of on
other grounds by Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So. 3d 344
(Fla. 2012).
8
There are other requirements and elements that must be met in order to prevail on
a first-party bad-faith cause of action, but because they are not relevant to these
appeals, I decline to discuss them here.
30
Thus, in the instant cases, the specific issue before this Court on the merits
would be whether the counts identified by Citizens in the Appellees’ complaints
depend upon bad-faith allegations and are, therefore, claims from which Citizens is
sovereignly immune. If such counts, as pled, are bad-faith claims, then they must be
dismissed.
Citizens contends that the breach of contract and declaratory judgment counts
in each of the Appellees’ complaints are riddled with bad-faith allegations
concerning the “proper” handling of the insurance adjustment process. I agree. In
fact, the “Breach of Contract” counts are not only riddled with bad-faith allegations,
they are actually premised on bad-faith allegations. Each of the claims at issue are
premised on the claim that Citizens failed to “properly investigate or adjust” the
Appellees’ insurance claims. The “Declaratory Judgment” counts are premised on
the Appellees’ allegations that Citizens “failed to satisfy its duty to adjust” and failed
to “properly investigate” the claims. All of the Appellees’ breach of contract and
declaratory judgment claims contain variations of these allegations.
These bad-faith allegations are completely irrelevant to any viable breach of
contract or declaratory judgment claim against Citizens, but are instead first-party
bad-faith claims regarding Citizens’ handling of the insurance adjustment process,
claims from which Citizens is sovereignly immune. Perdido Sun Condo. Ass’n, 164
So. 3d at 666-67 (“Although the Legislature codified Citizens’ duty to handle claims
31
in good faith, see § 627.351(6)(s) 2., Fla. Stat., the Legislature never listed statutory
first-party bad faith claims as one of the exceptions to Citizens’ immunity.”).
The notion that these are not statutory bad-faith claims simply because they
contain a fleeting reference to a breach of contract or because they are not called
statutory bad-faith claims should be rejected. While there are few Florida cases on
point, federal courts applying Florida law have addressed similar attempts to
disguise a statutory bad-faith claim as a breach of contract claim. These courts
concluded that absent a cause of action under section 624.155, there can be no
liability stemming from allegations concerning an insurer’s lack of good faith in the
performance of its contractual obligations. See Portofino S. Condo. Ass’n of W.
Palm Beach, Inc. v. QBE Ins. Corp., 664 F. Supp. 2d 1265, 1268 (S.D. Fla. 2009)
(“Portofino’s allegations that QBE failed to ‘reasonably’ and ‘promptly’ investigate
and pay its claim are analogous to the term ‘wrongful’ which would imply a statutory
bad faith claim under § 624.115.”) (internal quotation marks omitted); Nirvana
Condo. Ass’n v. QBE Ins. Corp., 589 F. Supp. 2d 1336, 1340 (S.D. Fla. 2008)
(“Nirvana’s claim is based on an implied contractual obligation based upon its
reasonable contractual expectations. Nevertheless, because the factual allegations
underlying its claim are based upon QBE’s failure to fairly and promptly
perform under its obligations in the contract, that contractual claim can only
be asserted, if at all, together with the extra-contractual bad faith claim under
32
section 624.155.”) (emphasis added); Quadomain Condo. Ass’n v. QBE Ins. Corp.,
No. 07-60003-CIV-MORENO, 2007 WL 1424596, at *4 (S.D. Fla. May 14, 2007)
(“Quadomain’s claim [for breach of implied warranty of good faith and fair dealing]
is actually a claim for statutory bad faith, controlled by section 624.155 of the Florida
Statutes, which cannot proceed until the underlying coverage dispute has been
resolved.”). These federal cases are persuasive. The Appellees’ allegations of bad-
faith cannot survive outside of a cause of action under 624.155, and, as I previously
discussed, Citizens is sovereignly immune from statutory bad-faith causes of action
under section 624.155.
To better illustrate what the Appellees are actually alleging as the basis for
their breach of contract and a declaratory judgment claims, the language utilized by
one of Appellees is being provided in this opinion. For example, in lower tribunal
case number 14-32096, which is appellate case number 3D16-854, count 5 of the
amended complaint is a claim for a declaratory judgment. In this count, the plaintiff
states the following:
76 Plaintiff seeks a declaration from this court that the duty to adjust
and investigate a loss, which is contained in the loss payment condition
of the policy, is a condition precedent to any other duty or applicable
condition or claim of performance by Defendant under this insurance
contract, and that as a condition precedent, Defendant must allege and
prove satisfaction of all conditions precedent before affirmatively
asserting compliance with any other provision or condition in the
contract.
33
The paragraphs that follow identify the contract at issue, the alleged loss, and
the denial of the claim. The remainder of the paragraphs allege that Citizens ignored
its duty in the contract to properly investigate and adjust the claim, that the duty to
adjust contemplates a duty to properly investigate, and that Citizens’ compliance
with this duty is a condition precedent to which Citizens must present proof of
satisfaction.
88 Plaintiff submits that where there is no agreement as to a denial or
application of an exclusion, Defendant cannot claim compliance with
the loss payment condition to ‘adjust’ the claim without first alleging
and proving compliance with its duties to conduct a proper
investigation imposed by law.
89 Logically, Plaintiff states that the loss payment condition/duty to
adjust the loss must occur before any determination of coverage and is
thus a condition precedent to any claim of performance.
....
91 Plaintiff’s rights to a fair adjustment of the claim by law and under
this insurance policy is dependent upon the facts and the law of
contractual construction applicable to the facts . . . .
92 The parties have adverse interests. The issue of Defendant’s legally
imposed duty to investigate losses and the devastating results that a
failure to fulfill such a duty has on insureds, represents an actual,
present, adverse and antagonist interest in the subject matter, in both
fact and law.
As these allegations make clear, the plaintiff is seeking a declaration from the
trial court that Citizens must allege and prove, as a condition precedent, that it “fairly
and properly” investigated and adjusted the plaintiff’s claims. But if there was any
34
doubt as to what the plaintiff is seeking, one need look no further than the
WHEREFORE clauses, which state the following:
93.01 that the loss payment condition containing the duty to adjust and
fully investigate the loss is a condition precedent to a determination of
coverage.
93.02 that Defendant must allege and prove satisfaction of the loss
payment condition duty to adjust the loss as a condition precedent prior
to determining coverage [regardless of whether coverage is ultimately
acknowledged or denied].
93.03 Defendant cannot ipse dixit claim that whatever coverage
decision it makes is a proper adjustment as that term is construed by
law absent allegations and proof of satisfaction of all conditions
precedent to such a loss, and
93.04 That Plaintiff be awarded its attorney’s fees and costs for seeking
this declaration of rights.
(bracketed material in original).
Allegations of this form appear in all of the cases on appeal. It is therefore
clear that the Appellees cannot recover what they seek in their declaratory judgment
claims because whether Citizens “fairly” or “properly” investigated or adjusted the
Appellees’ insurance claims are issues that are only relevant in bad-faith litigation,
and Citizens is sovereignly immune from such litigation. See §§ 624.155(1)(a)1.,
626.9541(1)(i)(3)(a, d); Perdido Sun Condo. Ass’n, 164 So. 3d at 666-67.
35
In fact, what the Appellees seek in their declaratory judgment claims is to shift
the burden, forcing Citizens to first prove, as a condition precedent, that it properly
investigated and adjusted the Appellees’ claims before the issue of coverage can
arise. Thus, the Appellees seek a declaration from the trial courts that Citizens must
actually prove the absence of bad-faith as a condition precedent before the Appellees
are required to prove that a breach of contract even occurred.
The breach of contract claims are brought under the same bad-faith rubric—
the failure to properly investigate and adjust the claim. The issue, however, cannot
be whether Citizens properly investigated or adjusted the claim, as Citizens
possesses sovereign immunity from such issues. The issue in an insurance breach
of contract claim is whether the Appellees suffered a covered loss, and if so, whether
Citizens fully compensated them for the loss under the contract.
The five complaints at issue in these appeals contain nearly identical language
except for the address of the property, the date of the alleged loss, and the date the
claim was filed. The breach of contract claims are not premised on the failure to
pay for the losses, but rather on the failure to properly adjust the claims by failing
to properly investigate the claims. As will become readily obvious by carefully
reviewing the below example, if the bad-faith allegations are removed, each of the
breach of contract claims would fail to state a cause of action.
36
The breach of contract claim in appellate case number 3D16-1457 states in its
entirety as follows.
51 Plaintiff re-alleges and re-avers the allegations common to all
counts above as though restated fully herein.
52 Plaintiff and Defendant entered into a contract which provided
insurance over the Plaintiff’s property per exhibit A.
53 Plaintiff incurred the October 26, 2015 claim during the term of
the policy and suffered damages as stated above for said loss.
54 Defendant failed to properly adjust the claim by failing to
properly investigate the same pursuant to the loss payment
condition of the contract and the law [F.S. § 626.877, F.S. §626.878
& Fla. Admin. Code §69B-220.201] thus breaching the loss payment
condition of the policy which is a material breach of the contract,
directly resulting in damages to the Plaintiff. Moreover, the breach of
the loss payment condition triggered a violation of other contractual
conditions and also a violation by Defendant to properly adjust the
claim within 90 days of the casualty, resulting in damages in the amount
in controversy alleged above to Plaintiff.
(emphasis added) (bracketed material in original).
WHEREFORE, Plaintiff demands judgment for damages in the
above amounts or as the proofs may show against Defendant, together
with Attorney’s fees and costs, pursuant to Statute, and such other relief
as this Court deems meet and proper or equitable.
Respectfully, this is not a case where the two counts in each complaint that
are at issue here merely contain “extraneous allegations condemning Citizens’
adjustment practices.” These counts in each of the subject complaints are premised
on the alleged inadequacy of Citizens’ adjustment practices, and they form the very
37
foundation of the breach of contract and declaratory judgment claims. They,
therefore, cannot stand as a matter of law.
If the bad-faith allegations or “extraneous language” were removed from
paragraph 54 of the complaint, the breach of contract claim would fail to state a
cause of action because the only breach alleged is the failure to properly adjust the
claim by failing to properly investigate the claim.
Nevertheless, if any of the Appellees wish to amend their complaint to state a
cause of action for breach of contract on grounds they are legally permitted to pursue,
they certainly may do so. Citizens announced at oral argument that it does not object
to defending itself against such claims. What the Appellees cannot do, however, is
pursue claims premised on Citizens’ adjustment practices.
Additionally, even if these statutory bad-faith allegations were not barred by
Citizens’ sovereign immunity, then it would still be error to permit the Appellees to
litigate such bad-faith claims while they are litigating breach of contract claims. It is
well settled that a breach of contract claim and a first-party bad-faith claim may not
be tried together. Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1276 (Fla. 2000) (“We
continue to hold . . . that bringing a cause of action in court for violation of section
624.155(1)(b)1 is premature until there is a determination of liability and extent of
damages owed on the first-party insurance contract. . . . Such a claim should be
dismissed as premature.”); GEICO Gen. Ins. Co. v. Harvey, 109 So. 3d 236, 239
38
(Fla. 4th DCA 2013); Maryland Cas. Co. v. Alicia Diagnostic, Inc., 961 So. 2d 1091,
1092 (Fla. 5th DCA 2007) (stating that “an insurer would be prejudiced by having
to litigate either a bad faith claim or an unfair settlement practices claim in tandem
with a coverage claim, because the evidence used to prove either bad faith or unfair
settlement practices could jaundice the jury’s view on the coverage issue”); see
also Progressive Select Ins. Co. v. Shockley, 951 So. 2d 20, 21 (Fla. 4th DCA 2007)
(“[The insurer] will suffer irreparable harm, which includes discovery of its accident
file, if it is forced to defend against both the [uninsured motorist] claim and the bad
faith claim simultaneously.”). It would no doubt prejudice an insurer to litigate a
breach of contract action at the same time that it is defending against an insured’s
first-party bad-faith allegations.
B. Conclusion on Citizens’ immunity
In summary, the Appellees have alleged that Citizens has failed to adjust their
insurance claims by failing to properly investigate their claims. This bad-faith
language is not merely extraneous language, which could simply be stricken. The
Appellees’ breach of contract and declaratory judgment claims are actually premised
on these statutory bad-faith allegations and if the bad-faith allegations are removed,
these claims would fail to state a cause of action. If the Appellees are dissatisfied
with Citizens’ coverage determination or the amount Citizens is willing to pay to
cover the loss, they can file a breach of contract claim disputing those
39
determinations—not disputing whether Citizens acted in good faith when it arrived
at those determinations or the means by which they processed the claims.
Because the allegations contained in the breach of contract and declaratory
judgment counts in the complaints are actually allegations concerning statutory bad-
faith, from which Citizens is sovereignly immune, the trial court erred by denying
Citizens’ motions to dismiss as to those counts. Accordingly, we should exercise
jurisdiction under rule 9.130(a)(3)(c)(xi), reverse the trial courts’ orders on appeal,
and remand with instructions to dismiss the relevant counts in the Appellees’
complaints without prejudice.
III. Recommendations
A. Recommendation to the trial courts
Immunity from suit is a valuable protection. If a defendant who is entitled to
immunity from suit is erroneously required to litigate the case and to stand trial, that
individual or entity has lost the right bestowed by statute to be protected from even
being named as a defendant, thereby rendering the statutory protection
meaningless. Keck, 104 So. 3d at 366. This problem can be easily remedied if the
trial courts simply issue orders that clarify the trial court’s ruling on a motion to
dismiss or a motion for summary judgment where the issue of immunity is raised
and litigated. The order should state whether the motion for dismissal or for
summary judgment on the claim of immunity is being denied as a matter of law, and,
40
if not, why not. Appellate review should not be thwarted by the issuance of an
unelaborated order.
B. Certified Question and Recommendation to the Florida Supreme
Court
This issue has resulted in numerous appeals in this Court and the other
appellate courts. Because immunity from suit provides an important and valuable
protection, I recommend that the Florida Supreme Court accept and address the
following certified question:
Under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi), must a
trial court’s order expressly state that it has determined, as a matter of
law, that the defendant is not entitled to sovereign immunity in order
for the district courts of appeal to have jurisdiction to review the non-
final order, or do the district courts of appeal have jurisdiction to review
the non-final order if the issue of immunity turns on a pure question of
law?
I also recommend that the Florida Supreme Court request that the Florida Bar
Appellate Court Rules Committee submit a proposed amendment to rule
9.130(a)(3)(C)(xi) requiring trial courts to articulate the basis of their ruling on
immunity determinations.
41