FLORIDA POWER & LIGHT COMPANY v. REHABILITATION CENTER AT HOLLYWOOD HILLS, LLC

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

FLORIDA POWER & LIGHT COMPANY,

Petitioner,

v.

REHABILITATION CENTER AT HOLLYWOOD HILLS, LLC;

HOLLYWOOD PROPERTY INVESTMENTS, LLC.; and BERNICE

MOULTRIE,

Respondents.

No. 4D19-1063

[December 11, 2019]

Petition for writ of certiorari to the Circuit Court for the Seventeenth

Judicial Circuit, Broward County; Martin J. Bidwill, Judge; L.T. Case No.

18-004415 CACE.

Stuart H. Singer, Evan Ezray, Luis Suarez and Mark Heise of Boies

Schiller Flexner LLP, Fort Lauderdale; and Eric Hoecker of Florida Power

& Light Company, Juno Beach, for petitioner.

Dorothy F. Easley of Easley Appellate Practice PLLC, Miami; and Julie

W. Allison of Julie W. Allison, P.A., Hollywood, for respondent

Rehabilitation Center At Hollywood Hills, LLC.

CIKLIN, J.

Florida Power and Light Company (FPL) petitions for certiorari review

from an order that denied its motion to dismiss a complaint filed by a

former resident of a nursing home—the Rehabilitation Center at Hollywood

Hills, LLC—who was allegedly injured following the loss of power in

Hurricane Irma. FPL’s motion sought dismissal of the complaint for failure

to state a claim upon which relief can be granted.

In this proceeding, FPL argues that it is immune from suit under a

provision in its tariff that provides:

2.5 Continuity of Service. The Company will use reasonable

diligence at all times to provide continuous service at the

agreed nominal voltage, and shall not be liable to the

Customer for complete or partial failure or interruption of

service, or for fluctuations in voltage, resulting from causes

beyond its control or through the ordinary negligence of its

employees, servants or agents. The Company shall not be

liable for any act or omission caused directly or indirectly by

strikes, labor troubles, accident, litigation, shutdowns for

repairs or adjustments, interference by Federal, State or

Municipal governments, acts of God or other causes beyond its

control.

(Emphasis supplied). 1 FPL maintains that this provision broadly

immunizes it from claims arising from “acts of God”—such as a hurricane.

The trial court concluded that it “is not convinced that the electric tariff

requires dismissal at this stage of the proceedings, based merely on the

face of the complaint. FPL's argument that the tariff limits its liability

requires factual determinations regarding causation and the proffered

defense.”

We dismiss the petition for failure to establish irreparable harm

necessary for certiorari jurisdiction. The Florida Supreme Court has made

clear that the denial of a motion to dismiss raising an alleged immunity

from suit is not subject to review by certiorari or any other extraordinary

writ. Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344,

352-53 (Fla. 2012). When public policy favors immediate review of a non-

appealable, nonfinal order, the proper course is for the Florida Supreme

Court to amend the rules of appellate procedure with input from the

1 “FPL and other public utilities promulgate a set of rates, rules, and regulations

collectively referred to as a ‘tariff,’ subject to review and approval by the [Public

Service Commission].” Ramos v. Fla. Power & Light Co., 21 So. 3d 91, 93 (Fla. 3d

DCA 2009). The Public Service Commission approved the tariff at issue, which

is “recognized as having the force and effect of law.” Landrum v. Fla. Power &

Light Co., 505 So. 2d 552, 554 (Fla. 3d DCA 1987); see also § 366.05(1)(e), Fla.

Stat. (2019) (“New tariffs and changes to an existing tariff, other than an

administrative change that does not substantially change the meaning or

operation of the tariff, must be approved by majority vote of the commission,

except as otherwise specifically provided by law.”).

FPL contends that the tariff is akin to a statute granting it “legislatively-blessed”

immunity from suit and that the purpose of the above clause is to avoid FPL being

overrun with costly litigation following a hurricane. FPL argues that the rates

approved by the tariff depend on FPL being afforded protection and that exposure

to suits such as this—for power outages following a hurricane—would undermine

the regulatory scheme and risk higher electricity rates for all Floridians.

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appellate rules committee. Id.; see also Keck v. Eminisor, 104 So. 3d 359,

365-66 (Fla. 2012); Tucker v. Resha, 648 So. 2d 1187, 1189-90 (Fla. 1994).

Pursuant to this binding caselaw, we lack jurisdiction to review the order

at issue.

When the Florida Supreme Court has amended Florida Rule of

Appellate Procedure 9.130 to allow for immediate review of a nonfinal order

determining that a party is not entitled to certain types of immunity from

suit, it has done so only where the immunity can be determined “as a

matter of law.” Fla. R. App. P. 9.130(a)(3)(C)(v) (“workers’ compensation

immunity”); Fla. R. App. P. 9.130(a)(3)(C)(vii) (“absolute or qualified

immunity in a civil rights claim arising under federal law”); Fla. R. App. P.

9.130(a)(3)(C)(x) (“immunity under section 768.28(9) [individual immunity

for government agents acting in the scope of their employment]”); Fla. R.

App. P. 9.130(a)(3)(C)(xi) (“sovereign immunity”). Nonfinal review is not

available where immunity turns on disputed issues of fact. See Reeves v.

Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 821-22 (Fla. 2004) (rejecting

certiorari jurisdiction as well).

Here, the trial court concluded that dismissal of the complaint was not

appropriate because FPL’s claim that its tariff limits its liability requires

factual determinations. Because FPL’s claim of immunity turns on

disputed facts, certiorari review is not available.

Petition dismissed.

GROSS and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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