Henry Robinson v. Florida Peninsula Insurance Company , 178 So. 3d 947 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
HENRY ROBINSON,
Appellant,
v.
FLORIDA PENINSULA INSURANCE COMPANY,
Appellee.
No. 4D14-1350
[November 12, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John J. Murphy, III, Judge; L.T. Case No. CACE13-
014338(21).
David S. Farber of The Farber Law Firm, Coral Gables, and Todd L.
Wallen of The Wallen Law Firm, P.A., Coral Gables, for appellant.
Thomas A. Valdez of Quintairos, Prieto Wood & Boyer, P.A., Tampa, and
Jose Bosch and Elizabeth Levins of Quintairos, Prieto Wood & Boyer, P.A.,
Miami, for appellee.
PER CURIAM.
Petitioner, Henry Robinson, seeks certiorari review1 of an order abating
his breach of contract and declaratory judgment action against Florida
Peninsula Insurance Company (“FPIC”). We find that the trial court
departed from the essential requirements of law in granting an abatement
under the circumstances of this case. We therefore grant Robinson’s
petition, quash the abatement order, and remand for further proceedings.
Robinson had a homeowner’s insurance policy with FPIC, which
provided FPIC an option to repair damaged property rather than make a
cash payment. Robinson experienced damage to his home and reported it
to FPIC. FPIC determined that the loss was covered, notified Robinson of
1This case was originally filed as a timely appeal of a non-final order concerning
an injunction, pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B). We
have treated the notice of appeal as a petition for writ of certiorari. Fla. R. App.
P. 9.030(b)(2)(A).
its intent to exercise its option to repair, and attempted to coordinate
repairs through its contractor. Robinson questioned the scope and
sufficiency of the contractor’s proposed repairs and requested an
appraisal. FPIC did not answer Robinson’s inquiries and ultimately denied
coverage because of Robinson’s refusal to allow its contractor to complete
the proposed repairs. According to the petition, Robinson subsequently
completed most of the repairs at his own expense.
Robinson filed a complaint against FPIC alleging breach of contract for
failing to pay for the covered loss. He also sought a declaratory judgment
as to whether FPIC properly exercised its option to repair, whether he was
required to allow FPIC’s contractor to repair his home without agreeing to
the proposed repairs, and whether FPIC was entitled to deny coverage
when he disputed the scope of the proposed repairs. FPIC did not answer
the complaint, but instead filed a motion to abate the action and compel
Robinson to comply with its right to repair his property. The trial court
granted FPIC’s motion, stating: “The action is abated. Plaintiff shall
comply with the Defendant’s right to exercise its option to repair the
Plaintiff’s damages.”
Certiorari review is appropriate when an order departs from the
essential requirements of law, causing material injury throughout the
remainder of the proceedings below and effectively leaving no adequate
remedy on post-judgment appeal. See Bd. of Trs. of Internal Improvement
Trust Fund v. Am. Educ. Enters., LLC, 99 So. 3d 450, 454–55 (Fla. 2012).
“An order of abatement is properly reviewable by writ of certiorari, because
there is no adequate remedy for the delay caused by abatement after final
judgment.” Britamco Underwriters, Inc. v. Cent. Jersey Invs., Inc., 632 So.
2d 138, 139 (Fla. 4th DCA 1994); see also Pecora v. Signature Gardens,
Ltd., 25 So. 3d 599, 599 (Fla. 4th DCA 2009).
We find that the trial court’s order in this case departs from the
essential requirements of law because it effectively amounts to a dismissal
of Robinson’s complaint. If Robinson has in fact completed the repairs,
the abatement will likely be indefinite, even though FPIC conceded in the
trial court that Robinson is entitled to a monetary judgment at least in the
amount of its contractor’s estimate. See Arch Roberts & Co. v. Auto-Owners
Ins. Co., 305 So. 2d 882, 882–84 (Fla. 1st DCA 1974) (affirming summary
judgment and finding insurer liable for payment to the insured in the
amount of the appraisal for repair where insured prevented insurer from
completing repairs). Robinson also may be entitled to dispute the amount
of the estimate. See Fla. Ins. Guar. Ass’n v. Branco, 148 So. 3d 488, 491–
92 (Fla. 5th DCA 2014) (finding that a dispute over the method of a
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proposed repair to a home is an “amount of loss” issue rather than a
coverage issue).
FPIC insists that Robinson’s action is premature and was properly
abated because a new contract was created when it exercised its option to
repair, and Robinson must allow FPIC to repair his property before he can
challenge the sufficiency of the repairs. See Drew v. Mobile USA Ins. Co.,
920 So. 2d 832, 835–36 (Fla. 4th DCA 2006). Robinson urges us to find
that FPIC did not properly exercise its option to repair in the first place.
We decline to address these issues on certiorari review, as they should be
litigated in the trial court pursuant to Robinson’s action for declaratory
judgment.
Under the circumstances of this case, we find that the trial court
departed from the essential requirements of law in abating Robinson’s
action. We therefore grant the petition, quash the abatement order, and
remand for further proceedings consistent with this opinion.
Petition for writ of certiorari granted; order quashed; remanded.
WARNER, MAY and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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