Citizens Property Ins. Corp. v. Calonge

Third District Court of Appeal

State of Florida

Opinion filed April 18, 2018.

Not final until disposition of timely filed motion for rehearing.

________________

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