www.rissman.com
TAMPA COMMONS
ONE NORTH DALE MABRY HIGHWAY
11TH FLOOR
TAMPA, FLORIDA 33609
TELEPHONE (813) 221-3114
TELECOPIER (813) 221-3033
TAMPA@RISSMAN.COM
201 EAST PINE STREET
15TH FLOOR
P.O. BOX 4940
ORLANDO, FLORIDA 32802-4940
TELEPHONE (407) 839-0120
TELECOPIER (407) 841-9726
ORLANDO@RISSMAN.COM
709 SEBASTIAN BOULEVARD
SUITE B
SEBASTIAN, FLORIDA 32958
TELEPHONE (772) 228-3228
TELECOPIER (772) 228-3229
SEBASTIAN@RISSMAN.COM

 

 

In State Farm v. Ulrich, 38 Fla. L. Weekly D1834a (Fla. 4th DCA August 28, 2013), the 4th DCA held that State Farm was not entitled to certiorari review of an order denying its motion to dismiss and motion for protective order in a first party bad faith action even though State Farm had paid the appraisal award pursuant to the provision of its policy. The 4th DCA also rejected State Farm's argument that the Civil Remedy Notice of Insurer Violation was defective due to lack of specificity.

State Farm was sued for first party bad faith after it had invoked the appraisal provision of its policy and had paid the appraisal award in a dispute with its insureds. In response, State Farm filed a motion to dismiss/abate the bad faith action contending that there could be no first party bad faith action until there had been a determination that State Farm had breached the insurance contract.

State Farm likewise filed a motion for protective order from bad faith discovery on the basis that it was premature. The trial court denied both motions. In response, State Farm filed a petition for writ of certiorari review of the trial court's orders.

The 4th DCA held that when an insurer invokes the appraisal provision of its policy in a dispute with its insureds and then pays the appraisal award, that may constitute a "favorable resolution" in favor of the insureds permitting a bad faith claim in certain circumstances.

Therefore, State Farm had failed to demonstrate that the trial court's denial of the motion to dismiss/abate the first party bad faith action was a departure from the essential requirements of law. Accordingly, State Farm was not entitled to certiorari review on this issue or the trial court's order denying the motion for protective order.

Also, with respect to State Farm's claim of lack of specificity in the Civil Remedy Notice, the 4th DCA observed that State Farm had not objected to the alleged lack of specificity when it initially received the notice. Further, the Department of Financial Services did not reject the notice for lack of specificity as it could have done in accordance with § 624.155(3)(c), Fla. Stat.

The 4th DCA also observed that courts have rejected the argument that a civil remedy notice must allege a specific cure amount. Thus, the 4th DCA held that State Farm had failed to demonstrate that the trial court had departed from the essential requirements in rejecting its claim that the civil remedy notice was defective due to lack of specificity.

 

 

This summary was prepared by Dean Hewitt of our firm.


Dean Hewitt

 

 

38 Fla. L. Weekly D1834a

 

Insurance -- Appeals -- Certiorari -- Petition by insurer for writ of certiorari from trial court orders denying motion to abate insurance bad faith action and denying motion for protective order from bad faith discovery -- Certiorari jurisdiction is lacking because insurer is not materially harmed and has adequate remedy on appeal from a final order -- A nonfinal order denying a motion to dismiss an insurance bad faith action is not subject to certiorari review -- Alleged deficiency in civil remedy notice served by insureds is not reviewable by certiorari -- Petition dismissed

STATE FARM INSURANCE COMPANY, Petitioner, v. STEVEN ULRICH and RAGNHILD ULRICH, Respondents. 4th District. Case No. 4D13-2409. August 28, 2013. Petition for writ of certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dale Ross, Judge; L.T. Case No. 08-49061 (08). Counsel: Paul Nettleton of Carlton Fields, P.A., Jay B. Green of Green, Ackerman & Frost, P.A., Boca Raton, and Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, for petitioner. Benjamin C. Hassebrock and Christine G. Gudaitis of Ver Ploeg & Lumpkin, P.A., Miami, for respondents.

(Per Curiam.) State Farm Florida Insurance Company petitions for a writ of certiorari from trial court orders that denied its motion to abate an insurance bad faith action and denied its motion for protective order from bad faith discovery. State Farm argues that respondents cannot maintain their first-party bad faith action because State Farm invoked the appraisal provision of the insurance policy and paid the appraisal award. State Farm further maintains that it cannot be liable in a statutory bad faith action under section 624.155(1)(b)1., Florida Statutes (2012), unless there has been a determination that it breached the insurance contract. Finally, State Farm contends that the civil remedy notice filed by respondents was defective as it was not specific enough. As set forth below, this court lacks certiorari jurisdiction to review the nonfinal orders at issue, and we dismiss the petition.

Certiorari jurisdiction is lacking as State Farm is not materially harmed and has an adequate remedy on appeal from a final order. A nonfinal order denying a motion to dismiss an insurance bad faith action is not subject to interlocutory review via petition for writ of certiorari. Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 104 So. 3d 344, 353-54 (Fla. 2012); see also State Farm Mut. Auto. Ins. Co. v. O'Hearn, 975 So. 2d 633, 636 (Fla. 2d DCA 2008); State Farm Fla. Ins. Co. v. Seville Place Condo. Ass'n, 74 So. 3d 105, 109 (Fla. 3d DCA 2011) (en banc) (receding from prior cases to the contrary), rev. dismissed, 91 So. 3d 133 (Fla. 2012).

This court has granted certiorari review of premature bad faith discovery where an insurer was compelled to disclose its entire claim file and where a coverage dispute for the claim remained pending. See, e.g., State Farm Fla. Ins. Co. v. Aloni, 101 So. 3d 412, 414 (Fla. 4th DCA 2012). That is not the situation here where no coverage dispute remains pending.

The alleged deficiency in the civil remedy notice that was served by respondents under section 624.155(3)(a), Florida Statutes (2012), is not reviewable by certiorari. Petitioner cites no authority that has held that a deficiency in a civil remedy notice under this statute may be reviewed by certiorari. Petitioner argues that the civil remedy notice is a condition precedent to bringing suit and should be subject to certiorari review like other presuit notice requirements. See Hord v. Taibi, 801 So. 2d 1011, 1012 (Fla. 4th DCA 2001) (granting second-tier certiorari where plaintiff had not complied with the presuit notice requirements for bringing a medical malpractice action under Chapter 766). This argument is unavailing. Certiorari may be available where a party fails to comply with the procedural requirements of a presuit notice statute -- such as by failing to file any notice at all -- but certiorari is not available to review the sufficiency of evidence presented to comply with presuit requirements. Williams v. Oken, 62 So. 3d 1129, 1135-36 (Fla. 2011). Similarly, certiorari is not available to review whether the civil remedy notice in this case was sufficiently specific.

Further, State Farm fails to demonstrate a departure from the essential requirements of law on any of its arguments. This court has held that an appraisal award may constitute a "favorable resolution" permitting a bad faith claim in certain circumstances. Trafalgar at Greenacres, Ltd. v. Zurich Am. Ins. Co., 100 So. 3d 1155 (Fla. 4th DCA 2012); accord Hunt v. State Farm Fla. Ins. Co., 112 So. 3d 547 (Fla. 2d DCA 2013). State Farm's argument that Trafalgar was wrongly decided essentially concedes that the trial court did not depart from any clearly established law. Whether a bad faith claim may be maintained where an appraisal provision has been invoked and paid depends on the circumstances of the case, and State Farm has an adequate remedy on appeal from a final judgment in an appropriate case.

Finally, with respect to the alleged lack of sufficient specificity in the civil remedy notice, we first observe that State Farm did not object to the alleged lack of specificity when it received the notice and that the Department of Financial Services did not reject the notice for lack of specificity. See § 625.155(3)(c), Fla. Stat. (2012) (permitting the department to return a notice that does not provide the specific information required by the statute). Further, courts have rejected the argument that a civil remedy notice must allege a specific cure amount. Hunt, 112 So. 3d at 551 (additional citations therein). Thus, State Farm failed to establish that the trial court departed from the essential requirements of law in rejecting this claim.

Because this court lacks certiorari jurisdiction, this petition is dismissed without prejudice for State Farm to argue these issues on appeal from a final order.

Petition dismissed. (May, Gerber and Forst, JJ., concur.)








* * *