author: POLSTON, J.

text:
    Leticia MORALES, et al., Appellants, v. ZENITH INSURANCE COMPANY, Appellee.
    No. SC13-696.
    Supreme Court of Florida.
    Dec. 4, 2014.

      Lee Delton Gunn, IV, of Gunn Law Group, P.A., Tampa, FL, and Tracy Raffles Gunn of Gunn Appellate Practice, P.A., Tampa, FL, for Appellants.
    Ira William Spivey, II and Courtney M. Keller of Greenberg Traurig, P.A., Orlando, FL, and Elliot H. Scherker, Julissa Rodriguez, and Jay Andrew Yagoda of Greenberg Traurig, P.A., Miami, FL, for Appellee.
    Williám Harris Rogner of Hurley, Rog-ner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, FL, on behalf of The Florida Association of Insurance Agents; Katherine Eastmoore Giddings and Nancy Mason Wallace, Akerman LLP, Tallahassee, FL, and William Wells Large, Tallahassee, FL, on behalf of the Florida Justice Reform Institute, et ah; Rayford Huxford Taylor of Casey Gilson P.C., Atlanta, GA, on behalf of Associated Industries of Florida, Inc., et al., for Amici Curiae.
   POLSTON, J.

In a breach of contract action brought by the estate of a deceased employee against his employer’s workers’ compensation and employer liability insurance carrier, the United States Court of Appeals for the Eleventh Circuit certified the following questions of Florida law:

(1) DOES THE ESTATE HAVE STANDING TO BRING ITS BREACH OF CONTRACT CLAIM AGAINST ZENITH UNDER THE EMPLOYER LIABILITY POLICY?
(2) IF SO, DOES THE PROVISION IN THE EMPLOYER LIABILITY POLICY WHICH EXCLUDES FROM COVERAGE “ANY OBLIGATION IMPOSED BY WORKERS’ COMPENSATION ... LAW” OPERATE TO EXCLUDE COVERAGE OF THE ESTATE’S CLAIM AGAINST ZENITH FOR THE TORT JUDGMENT?
(3) IF THE ESTATE’S CLAIM IS NOT BARRED BY THE WORKERS’ COMPENSATION EXCLUSION, DOES THE RELEASE IN THE WORKERS’ COMPENSATION SETTLEMENT AGREEMENT OTHERWISE PROHIBIT THE ESTATE’S COLLECTION OF THE TORT JUDGMENT?

Morales v. Zenith Ins. Co., 714 F.3d 1220, 1234 (11th Cir.2013).

For the reasons that follow, we hold that, under Florida law, the estate has standing, but that the workers’ compensation exclusion and the release prevent it from collecting the tort judgment from Zenith. Accordingly, we answer all three certified questions in the affirmative.

BACKGROUND

Santana Morales, Jr., was crushed to death by a palm tree while working for Lawns Nursery and Irrigation Designs, Inc. (Lawns). Thereafter, his surviving, spouse, Leticia Morales, entered into a workers’ compensation settlement agreement with Lawns and Lawns’ workers’ compensation and employer liability insurance carrier, Zenith Insurance Company (Zenith). The settlement agreement contained a release, through which Ms. Morales elected the consideration described in the agreement as the sole remedy with respect to the insurance coverage that Zenith provided to Lawns.

In a separate wrongful death lawsuit, which was ongoing when the parties entered the settlement agreement, Morales’ estate alleged that Lawns’ negligence caused, his death and obtained a default judgment against Lawns for $9,525 million. After Zenith refused to pay the tort judgment, the estate sued Zenith in state court under Lawns’ employer liability policy, alleging that Zenith had breached the policy. Zenith removed the case to federal court, and the federal district court held that the policy’s workers’ compensation exclusion barred the estate’s suit and therefore entered summary judgment in Zenith’s favor. Morales v. Zenith Ins. Co., 2012 WL 124086, at *8 (M.D.Fla. Jan. 17, 2012).

On appeal, the Eleventh Circuit concluded that it is unclear under Florida law “whether a workers’ compensation exclusion in an employer liability policy — which is intended to protect employers from tort liability to their employees — bars coverage of an employee’s tort judgment obtained in a separate negligence suit against the employer.” Morales, 714 F.Sd at 1228. The Eleventh Circuit further concluded that Florida law is unsettled as to whether the estate has standing to sue Zenith under Lawns’ employer liability policy and whether, if the workers’ compensation exclusion does not bar the estate’s claim, the release in the workers’ compensation settlement agreement prevents the estate from collecting the tort judgment from Zenith. Id. at 1234. Accordingly, the Eleventh Circuit certified the three questions of law set forth above to this Court. Id.

I. Standing

The Eleventh Circuit first asks whether the estate has standing under Lawns’ employer liability policy to sue Zenith for breach of contract. We hold that it does and therefore answer the first certified question in the affirmative.

Under Florida law, a judgment creditor has standing to bring suit against a liability insurer that may have coverage for the judgment. See Johnson v. Dawson, 257 So.2d 282, 284 (Fla. 3d DCA 1972) (“[A] judgment creditor has standing to raise the issues of estoppel and waiver as to insurance coverage against the insurer of the judgment debtor. However, one possessing standing does not necessarily prevail upon the proper application of the legal principles he may assert.”); Williams v. Union Nat’l Ins. Co., 528 So.2d 454, 455 n. 1 (Fla. 1st DCA 1988) (recognizing the right of a judgment creditor to proceed directly against a tortfea-sor’s insurance company); see also Van-Bibber v. Hartford Accident & Indem. Ins. Co., 439 So.2d 880, 882-83 (Fla.1983) (recognizing the ability of an injured person to bring claims as a third-party beneficiary against the tortfeasor’s insurance company after obtaining a judgment against the tortfeasor). In fact, Florida’s nonjoinder statute specifically allows a “cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract [but who] obtain[s] a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.” § 627.4136(1), Fla. Stat. (2009).

Accordingly, by virtue of having obtained a judgment against Lawns, Morales’ estate has standing to bring a direct action against Zenith to recover that judgment. Therefore, we answer the first certified question in the affirmative.

II. Workers’ Compensation Exclusion

The Eleventh Circuit next asks whether the workers’ compensation exclusion in the employer liability policy excludes coverage of the estate’s tort judgment against Lawns. We hold that it does and therefore answer the second certified question in the affirmative.

As the Eleventh Circuit explained, “[ultimately, an insurer’s liability depends on whether the insured’s claim is within the coverage of the policy.” Morales, 714 F.3d at 1227. In determining whether a claim is covered by an insurance policy, this Court enforces “a clear and unambiguous” provision pursuant to its plain language regardless of “whether it is a basic policy provision or an exclusionary provision.” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532 (Fla.2005) (quoting Hagen v. Aetna Cas. & Sur. Co., 675 So.2d 963, 965 (Fla. 5th DCA 1996)). Further, this Court reads the “policy as a whole, endeavoring to give every provision its full meaning and operative effect.” U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 877 (Fla.2007) (quoting Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000)). Only if a provision is ambiguous after considering the policy as a whole will this Court construe the ambiguous provision against the insurer in favor of coverage. Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003).

The policy at issue is a ‘Workers Compensation and Employers Liability Insurance Policy” issued by Zenith to Morales’ employer, Lawns. Part One of the policy provides Workers Compensation Insurance, under which Zenith agreed to pay “the benefits required of [Lawns] by the workers compensation law.” Part Two provides Employers Liability Insurance, under which Zenith agreed to pay “all sums [Lawns] legally must pay as damages because of bodily injury to [its] employees, provided the bodily injury is covered by this Employers Liability Insurance.” Through a workers’ compensation exclusion, the employer liability policy excludes coverage for “any obligation imposed by a workers compensation ... law.”

Reading these provisions together, it is clear that the workers’ compensation exclusion bars coverage of claims arising from bodily injuries for which Lawns is required to pay benefits under workers’ compensation law — i.e., claims that are covered by the workers’ compensation insurance portion of the policy. In other words, as we have previously explained, employer liability insurance is a “gap-filler [that] provides] protection to the employer in those situations where the employee has a right to bring a tort action despite the provisions of the workers’ compensation statute.” Travelers Indem. Co. v. PCR Inc., 889 So.2d 779, 784 n. 7 (Fla.2004) (quoting Producers Dairy Delivery Co. v. Sentry Ins. Co., 41 Cal.3d 903, 226 Cal.Rptr. 558, 718 P.2d 920, 927 (1986)); see also Appleman on Insurance Law and Practice § 4571 (Berdal ed. 1979) (describing the coverages provided by workers’ compensation and employer liability insurance as “mutually exclusive”); 9A Couch on Ins. § 132:57 (3d ed. 2013) (explaining that employer liability insurance “‘fill[s] ■the gaps’ in workers’ compensation coverage”).

In this case, the estate did not have the right to bring a tort action against Lawns. Rather, because the estate alleged that Lawns’ negligence caused Morales’ death, its exclusive remedy was under Florida’s Workers’ Compensation Law, chapter 440, Florida Statutes. See generally § 440.11(1), Fla. Stat. (2014) (addressing the exclusiveness of workers’ compensation liability); see also Eller v. Shova, 630 So.2d 537, 539 (Fla.1993) (“[Workers’ compensation is the exclusive rémedy available to an injured employee as to any negligence on the part of that employee’s employer ... so long as the employer has not engaged in any intentional act designed to result in or that is substantially certain to result in injury or death to the employee.”); Morales, 2012 WL 124086, at *3 (“Workers’ compensation laws effectuate a compromise between employers and employees in which employers pay prompt benefits to injured workers, regardless of fault, and employees in turn give up their common law rights to sue their employer in tort.”).

Despite not having the right to do so, the estate brought a separate tort action against Lawns and secured a default judgment. The estate now argues that Zenith cannot avoid coverage of the tort judgment through the workers’ compensation exclusion since the judgment is a duty to pay imposed by tort law, not an “obligation imposed by workers’ compensation law.” In support of this argument, the estate relies primarily on the Fourth District Court of Appeal’s decision in Wright v. Hartford Underwriters Ins. Co., 823 So.2d 241, 243 (Fla. 4th DCA 2002), in which the Fourth District concluded that an insurance company could not rely on a workers’ compensation exclusion to avoid coverage of a settlement judgment entered in an injured employee’s civil suit against his employer because the judgment was not an “obligation imposed by workers’ compensation law.”

However, unlike the estate’s complaint against Lawns — which alleged that Lawns’ negligence caused Morales’ death and therefore plainly implicated workers’ compensation exclusivity — “the affirmative defense of workers compensation immunity [did not] appear[ ] on the face of Wright’s civil complaint.” Id. at 242 n. 3. Instead, as the Fourth District explained, Wright alleged that his injuries were the result of a fellow employee’s gross negligence, for which his employer was vicariously liable. Id. at 241. This allegation implicated a statutory exception to workers’ compensation immunity and allowed Wright to pursue a civil remedy. See generally § 440.11(1), Fla. Stat. (“[F]ellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, ... with gross negligence when such acts result in injury or death[.]”); see also Wright, 823 So.2d at 243 (“Whether [Wright’s co-worker] is an insured under the policy and whether the intentional tort exclusion applies are issues remaining to be determined.”). In other words, unlike the estate’s allegations against Lawns, Wright’s allegations against his employer removed his claim from the exclusivity of Florida’s Workers’ Compensation Law, thereby implicating a gap in his employer’s workers’ compensation insurance for the employer liability insurance to fill.

Though the nature of Wright’s claim makes the Fourth District’s application of the workers’ compensation exclusion in his case inapplicable to the facts of this case, its more recent decision in Indian Harbor Ins. Co. v. Williams, 998 So.2d 677 (Fla. 4th DCA 2009), is instructive as to how the workers’ compensation exclusion applies to negligence-based claims by injured employees. In Indian Harbor, 998 So.2d at 678, the Fourth District addressed whether the employer, who was insured under a commercial general liability (CGL) policy, “was entitled to coverage for negligence claims brought against him by his employees ... for injuries they sustained within the course and scope of their employment.” Even though the employer had violated its statutory duty to maintain workers’ compensation insurance, and even though the employee’s claim was also barred by a separate employee exclusion, the Fourth District applied the policy’s workers’ compensation exclusion to hold that the employer was not entitled to coverage. Id. at 679.

In so holding, the Fourth District “adopt[ed] the reasoning” of the Third District Court of Appeal’s decision in Florida Insurance Guaranty Ass’n v. Revoredo, 698 So.2d 890 (Fla. 3d DCA 1997). Id. Like the Fourth District in Indian Harbor, the Third District in Re-voredo addressed whether a CGL policy’s workers’ compensation exclusion barred coverage of an employee’s negligence claim where the employer had failed to secure workers’ compensation insurance. Revoredo, 698 So.2d at 891. The Third District held that “both” the workers’ compensation exclusion and a separate employee exclusion (which generally bars coverage for bodily injury to employees) applied to preclude coverage. Id. The Third District explained its holding with respect to the workers’ compensation exclusion as follows: because “[t]he ‘employer’s liability’ is pursuant to section 440.11(1)” of the Workers’ Compensation Law, its “obligation to [the employee] is one ‘under a workers’ compensation ... law’” for purposes of the CGL policy’s workers’ compensation exclusion. Id. at 893; see also XL Ins. Am., Inc. v. Ortiz, 673 F.Supp.2d 1331, 1344-45 & n. 14 (S.D.Fla.2009) (holding CGL policy’s workers’ compensation exclusion precluded recovery of damages for the same bodily injury for which the employee had received workers’ compensation benefits); Sinni v. Scottsdale Ins. Co., 676 F.Supp.2d 1319, 1332 (M.D.Fla.2009) (“[Cjoverage is determined by looking at the policy and the actual facts-not the labels attached to the underlying tort obligation.”).

Like the negligence-based claims in Indian Harbor and Revoredo, the estate’s tort judgment arises from an injury that plainly falls within the exclusivity of Florida’s Workers’ Compensation Law and therefore within the coverage provided by Lawns’ workers’ compensation policy. Given the mutually exclusive nature of workers’ compensation and employer liability coverages, Zenith has no obligation under the employer liability policy to pay the tort judgment. See 8 Couch on Ins. § 115:89 (3d ed. 2013) (“It is the fact that the employee’s claim comes within the scope of the workers’ compensation statute rather than the actual fact that he or she has recovered or is receiving workers’ compensation for his or her harm, which is the basis for exclusion [under a workers’ compensation exclusion].... [A]nyone who is eligible for compensation is excluded.”).

Accordingly, we hold that the workers’ compensation exclusion bars coverage of the estate’s tort judgment under the employer liability policy. Therefore, we answer the second certified question in the affirmative.

III. Release

Last, the Eleventh Circuit asks whether the release in the workers’ compensation settlement agreement precludes the estate from collecting the tort judgment from Zenith. We hold that it does and therefore answer the third certified question in the affirmative.

As explained above, while the estate’s wrongful death action was pending against Lawns, Morales’ surviving spouse, Leticia Morales (who is also the personal representative of Morales’ estate), entered into a workers’ compensation settlement agreement with Lawns and Zenith. The agreement was entered pursuant to section 440.20(ll)(c)-(e) of Florida’s Workers’ Compensation Law, and contains the following release:

ELECTION AND WAIVER: Pursuant to Florida Statutes, Section 440.20(1l)(c) (2001), in exchange for the consideration described below, the Claimant hereby waives all rights to any and all benefits under The Florida Workers’ Compensation Act. Further, this settlement and agreement shall constitute an election of remedies by the claimant with respect to the employer and the carrier as to the coverage provided to the employer.

We read this provision to do what it says, namely to elect the consideration described in the settlement agreement (i.e., a lump-sum payment authorized by section 440.20(1l)(c) of the Workers’ Compensation Law) as the sole remedy for Morales’ death. Florida law authorizes such an election. See Jones v. Martin Electronics, Inc., 932 So.2d 1100, 1106 (Fla.2006) (“[Tjo constitute an election of remedies the workers’ compensation remedy must be pursued to a determination or conclusion on the merits.... There must be evidence of a conscious intent by the claimant to elect the compensation remedy and to waive his other rights.”) (quoting Wheeled Coach Indus., Inc. v. Annulis, 852 So.2d 430, 433 (Fla. 5th DCA 2003)); see also Petro Stopping Ctrs., L.P. v. Gall, 23 So.3d 849, 852 (Fla. 5th DCA 2009) (holding claimant elected workers’ compensation benefits to the exclusion of tort benefits through a settlement agreement); Moniz v. Reitano Enters., Inc., 709 So.2d 150,153 (Fla. 4th DCA 1998) (precluding employee from maintaining tort action for injuries that were not separable from the injury for which she had elected workers’ compensation benefits through a settlement agreement).

And, as a direct party to the settlement agreement, Zenith is entitled to enforce its terms to avoid any payment obligation to the estate arising from the insurance it provided to Lawns. See Philip J. Padova-no, Florida Civil Practice § 11.6 (2014 ed.) (“A settlement agreement creates new contractual rights and duties which may be enforced in place of the underlying claims and defenses.”).

Nevertheless, the estate contends that the release is not binding on Ms. Morales because she signed the settlement agreement in her capacity as parent and guardian of four minor children (rather than in her individual capacity or her capacity as personal representative of Morales’ estate), and that it is not binding with respect to the minor children’s tort claim because the probate court did not approve it and the children were not represented by guardians ad litem.

However, to accept the estate’s argument would require us to ignore Florida law governing the way in which workers’ compensation claims are made and settled. Specifically, in a case such as this one involving an employee’s death as a result of employer negligence, the employer’s statutory workers’ compensation liability is “exclusive and in place of all other liability ... of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death.” § 440.11(1), Fla. Stat. •

Florida’s Workers’ Compensation Law fixes the amount of compensation for the employee’s death that is due to the employee’s statutory beneficiaries, including the spouse and children. See § 440.16, Fla. Stat. Surviving spouses, like Ms. Morales, may make a claim for the available statutory benefits. See Blackburn v. Taylor, 566 So.2d 915, 916 (Fla. 1st DCA 1990) (recognizing that a “surviving spouse” of a deceased employee is entitled to claim workers’ compensation benefits). Further, the Workers’ Compensation Law allows a claimant who is represented by counsel, as Ms. Morales was, to settle such a claim, as Ms. Morales did. See § 440.20(1l)(c)-(d), Fla. Stat.

In this case, it is undisputed that the settlement agreement complied with Florida’s Workers’ Compensation Law and was approved by the judge of compensation claims. The fact that the estate subsequently obtained a tort judgment against Lawns that should have been prohibited by both the release and workers’ compensation immunity does not somehow prevent Zenith from enforcing the remedy Ms. Morales elected.

Accordingly, we hold that the release precludes the estate from collecting the tort judgment from Zenith and therefore answer the third certified question in the affirmative.

CONCLUSION

For the foregoing reasons, we answer all three certified questions in the affirmative. Having answered the certified questions, we return this case to the United States Court of Appeals for the Eleventh Circuit.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and PERRY, JJ., concur.

      . We have jurisdiction. See art. V, § 3(b)(6), Fla. Const.


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Anthony LoBELLO and Patricia LoBello, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 2D13-300.
    District Court of Appeal of Florida, Second District.
    June 18, 2014.
    Charles M. Schropp and Charles P. Schropp of Schropp Law Firm, P.A., Tampa; James J. Dowling of Law Offices of Berger & Dowling, Palm Harbor; and Craig A. LeValley and Peter A. Napolitano of LeValley & Napolitano, P.L., New Port Richey, for Appellants.
    Scot E. Samis of Traub Lieberman Straus & Shrewsberry, LLP, St. Peters-burg, for Appellee.
   WALLACE, Judge.

Anthony LoBello and Patricia LoBello (the LoBellos) appeal a final summary judgment entered in favor of State Farm Florida Insurance Company on the LoBel-los’ sinkhole claim. Because there is a material issue of fact concerning whether the LoBellos timely reported their claimed loss under their homeowners’ policy to State Farm, we reverse.

I. THE FACTS AND PROCEDURAL HISTORY

The LoBellos moved into their new home in 2002. In late 2004, they noticed cracking in their home. Initially, the Lo-Bellos attributed the cracking to the effects of normal settlement, and they did not associate the cracks with sinkhole activity. Mr. LoBello, who is a professional painter, simply repaired and repainted most of the damaged areas.

Sometime later, on the recommendation of a friend, the LoBellos consulted a public adjuster concerning the cracking. The consultation with the public adjuster led the LoBellos to make a sinkhole claim under their policy with State Farm on February 20, 2008. State Farm took the examinations under oath (EUOs) of the LoBellos in July 2008. In November 2008, State Farm sent the LoBellos a letter denying coverage for the claim based on late reporting and the assertion that State Farm had been prejudiced by its inability to perform a prompt investigation. State Farm also alleged that the LoBellos failed to take appropriate measures “to save or protect the property from further peril.”

In May 2009, the LoBellos filed an action on their claim against State Farm. The LoBellos’ operative complaint had two counts. Count I was a claim for breach of contract based on State Farm’s failure to pay the claim. In Count II, the LoBellos alleged a second claim for breach of contract based on State Farm’s failure to conduct testing for sinkhole activity in accordance with section 627.707, Florida Statutes (2007). State Farm answered the complaint and raised various affirmative defenses, including the LoBel-los’ alleged failure to comply with the policy provision requiring timely reporting of a claim of loss. The policy language upon which State Farm relied in Section I concerning “Conditions” provided, in pertinent part, as follows:

2. Your Duties After Loss. After a loss to which this insurance may apply> you shall see that the following duties are performed:
a. give immediate notice to us or our agent. Also notify- the police if the loss is caused by theft. Also notify the credit card company or bank if the loss involves a credit card or bank fund transfer card;
b. protect the property from further damage or loss, make reasonable and necessary temporary repairs required to protect the property, keep an accurate record of repair expenditures;

State Farm also alleged that the late notice prejudiced it in its handling and investigation of the claim.

This much of the procedural history in the circuit court is straightforward. However, the course of the proceedings relative to the parties’ respective motions for summary. judgment is somewhat unusual and complicated. In December 2009, State Farm filed its first motion for summary judgment. Based primarily on the LoBel-los’ EUOs, State Farm asserted that the undisputed facts established that the reporting of their claim under the policy was untimely. State Farm also asserted that the LoBellos were unable to overcome the presumption of prejudice to State Farm resulting from the late notice. Later, the LoBellos moved for a partial summary judgment on their breach of contract claim arising from State Farm’s failure to conduct an appropriate sinkhole investigation.

In January 2011, the circuit court granted the LoBellos’ motion for partial summary judgment based on State Farm’s failure to conduct the appropriate sinkhole investigation. State Farm moved for reconsideration of the order granting the partial summary judgment to the LoBellos and moved again for a summary judgment based on the asserted late reporting by the LoBellos of their claim. On April 29, 2011, the circuit court denied State Farm’s motion for reconsideration and also denied its motion for summary judgment based on the alleged untimely notice. In its order denying State Farm’s motion for summary judgment, the circuit court said: “The Court finds that a question of fact exists as to whether [the LoBellos] should have known that a claim would arise when they observed damage in 2004.”

In August 2011, State Farm moved for summary judgment for a third time. In its renewed motion for summary judgment, State Farm did not rely on any facts that were not previously known or available. Instead, State Farm asserted that the LoBellos’ claim was “barred” as a matter of law as untimely based on what were then two recently decided cases: (1) Kroener v. Florida Insurance Guaranty Ass’n, 63 So.3d 914 (Fla. 4th DCA 2011); and (2) Hochberg v. Thomas Carter Painting, Inc., 63 So.3d 861 (Fla. 3d DCA 2011).

At the hearing on its renewed motion for summary judgment, State Farm’s counsel had this to say about the Fourth District’s decision in the Kroener case:

The Court notes that the insured must give prompt notice, as this policy of State Farm requires. The Court found, as a matter of law, Your Honor, two years and two months after a loss occurred is not prompt notice. As a matter of law, it violated the policy conditions. And it was sufficient to bar the claim.

In this case, the LoBellos first became aware of the cracking in late 2004, but did not file a claim with State Farm until November 2008, approximately four years later. According to State Farm’s counsel, Kroener required a ruling that the LoBel-los’ claim was barred as a matter of law. State Farm’s counsel also argued to the circuit court that — in accordance with Kroener — a conclusion that the LoBellos did not timely report their claim to the insurance company in accordance with the policy made it unnecessary to address the issue of whether the insurance company had sustained any prejudice because of the late notice.

At the hearing, State Farm’s counsel also relied heavily on the following statement from the Hochberg case: “[Wjhere there is an obvious manifestation of a defect, notice will be inferred at the time of manifestation regardless of whether the plaintiff has knowledge of the exact nature of the defect.” 63 So.3d at 863 (quoting Performing Arts Ctr. Auth. v. Clark Constr. Grp., Inc., 789 So.2d 392, 394 (Fla. 4th DCA 2001)). In counsel’s paraphrase of the quotation from Hochberg, “If they know about it, that’s when the clock starts to click.” Because the cracking first manifested itself in the LoBellos’ residence in 2004 and they did not make a claim until 2008, counsel concluded that State Farm was entitled to a summary final judgment based on its defense of untimely notice.

In response, the LoBellos’ counsel argued that the Kroener and Hochberg cases were distinguishable and inapplicable. Perhaps because of State Farm’s insistence that Kroener and Hochberg entitled it to a summary judgment as a matter of law based on an untimely notice, no one addressed the issue of prejudice at the hearing. At the conclusion of the hearing, the circuit judge announced — without explanation — that he would grant State Farm’s renewed motion for summary judgment. The written order memorializing' the circuit court’s ruling does not contain any findings or conclusions of law and merely cites to Kroener and Hochberg. Somewhat inconsistently, the circuit court did not vacate its earlier order in which it found that there was a material issue of fact concerning “whether [the LoBellos] should have known that a claim would arise when they observed damage in 2004.” Similarly the circuit court did not vacate its earlier order granting the LoBellos’ motion for summary judgment based on State Farm’s failure to conduct an appropriate investigation.

Based on the order granting the renewed motion for summary judgment, the circuit court entered a final judgment in favor of State Farm. The LoBellos filed a motion for rehearing; the circuit court denied the motion. This appeal followed.

II. THE STANDARD OF REVIEW

The standard of review for an order granting a motion for summary judgment is de novo and requires a two-pronged analysis. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered, Huntington Nat’l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000), and (2) the moving party is entitled to a judgment as a matter of law, Aberdeen at Ormond Beach, 760 So.2d at 130. “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991).

III. THE APPLICABLE LAW

“The purpose of a provision for notice and proofs of loss is to enable the insurer to evaluate its rights and liabilities, to afford it an opportunity to make a timely investigation, and to prevent fraud and imposition upon it.” State Farm Mut. Auto. Ins. Co. v. Ranson, 121 So.2d 175, 180 (Fla. 2d DCA 1960), overruled in part on other grounds, Am. Fire & Cas. Co. v. Collura, 163 So.2d 784, 793-94 (Fla. 2d DCA 1964); see also Ideal Mut. Ins. Co. v. Waldrep, 400 So.2d 782, 786 (Fla. 3d DCA 1981) (noting that the insured’s extended delay in reporting the accident or occurrence deprived the insurer of its right “to notice and an opportunity to eliminate or reduce its loss”). “The failure of an insured to give a timely notice of loss in contravention of a policy provision is a legal basis for the denial of recovery under the policy.” Waldrep, 400 So.2d at 785 (citing Boyd v. Pa. Nat’l Mut. Cas. Ins. Co., 195 So.2d 259 (Fla. 4th DCA 1967)).

The question of whether an insured’s untimely reporting of loss is sufficient to result in the denial of recovery under the policy implicates a two-step analysis. See 1500 Coral Towers Condo. Ass’n v. Citizens Prop. Ins. Corp., 112 So.3d 541, 543-45 (Fla. 3d DCA 2013) (applying a two-step analysis to the question); Clena Invs., Inc. v. XL Specialty Ins. Co., 2012 WL 1004851, at *3 (S.D.Fla. Mar. 26, 2012) (not reported in F.Supp.2d) (“[M]ost Florida cases appear to treat the issue in two step fashion.”). The first step in the analysis is to determine whether or not the notice was timely given. See 1500 Coral Towers, 112 So.3d at 543-44; Waldrep, 400 So.2d at 785-86; Clena Invs., 2012 WL 1004851, at *4. If the notice was untimely, then prejudice to the insurer is presumed. Bankers Ins. Co. v. Macias, 475 So.2d 1216, 1218 (Fla.1985); Soronson v. State Farm Fla. Ins. Co., 96 So.3d 949, 952-53 (Fla. 4th DCA 2012). However, the presumption of prejudice to the insurer “may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.” Macias, 475 So.2d at 1218.

A determination that the notice was, in fact, timely concludes the analysis with the first step. However, if the notice was untimely, then the analysis proceeds to the second step. 1500 Coral Towers, 112 So.3d at 544-45; Waldrep, 400 So.2d at 786; Ciena Invs., 2012 WL 1004851, at *4. In the second step, the insured must overcome the presumption by proving that the insurer was not prejudiced by noncompliance with the condition of timely notice. Macias, 475 So.2d at 1218; Soronson, 96 So.3d at 952-53. The burden of overcoming the presumption of prejudice is on the insured. Macias, 475 So.2d at 1218; So-ronson, 96 So.3d at 953. If the insured is unable to overcome the presumption of prejudice, then the insurer will prevail on a defense of untimely notice.

An event must be of sufficient consequence to trigger an insured’s duty to provide notice. “Notice is necessary when there has been an occurrence that should lead a reasonable and prudent man to believe that a claim for damages would arise.” Waldrep, 400 So.2d at 785 (citing Mountainair Mun. Sch. v. U.S. Fid. & Guar. Co., 80 N.M. 761, 461 P.2d 410 (1969)). “[T]he duty to provide notice arises when a reasonable person, viewing all available facts and information, would conclude that an award implicating the policy is likely.” Vision I Homeowners Ass’n v. Aspen Specialty Ins. Co., 674 F.Supp.2d 1333, 1338-39 (S.D.Fla.2009) (quoting Bray & Gillespie IX, LLC v. Hartford Fire Ins. Co., 2009 WL 1513400, at *7 n. 9 (M.D.Fla. May 27, 2009)).

In this case, the policy condition called for “immediate notice” of a “loss to which this insurance may apply.” Such a provision will be read as meaning “as soon as practicable” and “call[s] for notice to be given with reasonable dispatch and within a reasonable time in view of all the facts and circumstances of each particular case.” Collura, ,163 So.2d at 792. “All of the Florida cases bearing upon the question of the requirement of notice being given to the insurer seem to be uniform in the proposition that what is a reasonable time depends upon the surrounding circumstances and is ordinarily a question of fact for the jury.” Renuart-Bailey-Cheely Lumber & Supply Co. v. Phoenix of Hartford Ins. Co., 474 F.2d 555, 557 (5th Cir.1972) (citing Hartford Accident & Indent. Co. v. Mills, 171 So.2d 190 (Fla. 1st DCA 1965)); see generally Steven Plitt et al., Chapter 190. Time Requirements-Introduction & General Principles; Standards & Measure of Compliance, in 13 Couch on Insurance, § 190:30 (3d ed. 2013) (discussing notice provisions in insurance policies and stating that “an ‘immediate notice’ provision merely imposes a reasonable requirement”).

The determination of whether the insured gave timely notice to the insurer is ordinarily a question to be resolved by the jury or the trial judge when acting as the trier of the facts. See King Cole Condo. Ass’n v. USPlate Glass Ins. Co., 45 So.3d 833, 833 (Fla. 3d DCA 2010); Waldrep, 400 So.2d at 785; Solano v. Fed. Title & Ins. Corp., 229 So.2d 312, 313 (Fla. 1st DCA 1969); Renuart, 474 F.2d at 557; Clena Invs., 2012 WL 1004851, at *4. On the other hand, if the undisputed evidence will not support a finding that the insured gave notice to the insurer as soon as practicable, then a finding that notice was timely given is unsupportable. Waldrep, 400 So.2d at 785; Midland Nat’l Ins. Co. v. Watson, 188 So.2d 403, 405 (Fla. 3d DCA 1966); Clena Invs., 2012 WL 1004851, at *4.

IV. DISCUSSION

We begin our discussion of this case by noting that the circuit court had the right to change its interlocutory rulings on the various motions for summary judgment that the parties had presented to it. “It is well established that a trial court may reconsider and modify interlocutory orders at any time until final judgment is entered.” Oliver v. Stone, 940 So.2d 526, 529 (Fla. 2d DCA 2006) (citing Hunter v. Dennies Contracting Co., 693 So.2d 615 (Fla. 2d DCA 1997)). “An order granting summary judgment is an interlocutory order, and a trial court has inherent authority to reconsider and modify its interlocutory orders.” AC Holdings 2006, Inc. v. McCarty, 985 So.2d 1123, 1125 (Fla. 3d DCA 2008) (citing Bay N Gulf, Inc. v. Anchor Seafood, Inc., 971 So.2d 842, 843 (Fla. 3d DCA 2007)).

However, two things are noteworthy about the circuit court’s order granting State Farm’s renewed motion for summary judgment. First, the circuit court never vacated its earlier order granting the partial summary judgment in favor of the LoBellos on their breach of contract claim based on State Farm’s failure to conduct a sinkhole investigation. In addition, the circuit court never vacated its earlier order denying State Farm’s initial motions for summary judgment in which it ruled that there were genuine issues of material fact underlying the issue of whether the LoBellos had given timely notice of the claimed loss to State Farm. Second, the circuit court did not base its ruling in favor of State Farm on any new facts. Instead, the circuit court granted State Farm’s renewed motion entirely on the authority of two recently decided cases—Kroener and Hochberg—that State Farm presented as requiring a different result in light of the facts that were already known.

In this case, the circuit court initially ruled that there was a material issue of fact underlying the question of whether the LoBellos had complied with the policy condition requiring timely notice to State Farm of their sinkhole claim. Based on this ruling, the circuit court’s consideration of the matter properly ended with the first step in- the two-step analysis. The presence of a material issue of fact concerning the timeliness of the notice made it unnecessary to reach the second step and to consider the question of prejudice.

At the hearing on the renewed motion for summary judgment, State Farm argued that—under Kroener—the substantial period of time that had elapsed since the LoBellos first noticed the cracks in their new home before they reported the claimed loss was sufficient in itself to “bar” their claim. Accordingly, it was urineces-sary to proceed to the second step in the analysis and to consider whether the Lo-Bellos could overcome the presumption of prejudice to State Farm resulting from the late reporting of the claim. The circuit court apparently agreed and entered a final summary judgment without regard to its earlier order ruling that there was a material issue of fact underlying State Farm’s defense based upon the alleged untimely report of the claim.

There are two problems with this reading of the Fourth District’s decision in Kroener. First, it short-circuits the two-step analysis required by the supreme court’s decision in Macias and numerous other reported Florida cases. The Fourth District has issued multiple opinions correcting this misinterpretation of Kroener. See Kings Bay Condo. Ass’n v. Citizens Prop. Ins. Corp., 102 So.3d 732, 733 (Fla. 4th DCA 2012); Soronson, 96 So.3d at 953 n. 1; Kramer v. State Farm Fla. Ins. Co., 95 So.3d 303, 307 n. 1 (Fla. 4th DCA 2012); see also Hope v. Citizens Prop. Ins. Corp., 114 So.3d 457, 459 (Fla. 3d DCA 2013) (citing to the Fourth District’s “later cases that receded from and clarified the Kroener holding”); Stark v. State Farm Fla. Ins. Co., 95 So.3d 285, 287-88 (Fla. 4th DCA 2012) (applying the prejudice analysis set forth in Macias and not citing to Kroener).

Second, State Farm’s reading of Kroener in the circuit court purports to establish a bright-line rule “barring” an insured’s claim that is reported later than a designated period of time, e.g., two years, after the loss. Once again, this is a misreading of Kroener. The Fourth District did not attempt in Kroener to establish such a bright-line rule. See Slominski v. Citizens Prop. Ins. Corp., 99 So.3d 973, 978-79 (Fla. 4th DCA 2012); see also Banta Props., Inc. v. Arch Specialty Ins. Co., 2011 WL 5928578, at *3 (S.D.Fla. Nov. 23, 2011) (not reported in F.Supp.2d) (distinguishing Kroener and noting that under Florida law “there is no per se timeliness bar for filing a notice of a claim and that notice must be considered under the circumstances”). State Farm’s misreading of Kroener in the circuit court ignored this court’s opinion in Collura and many other Florida decisions holding that what is a reasonable time to give notice of a claim to the insurer must be considered “in view of all the facts and circumstances of each particular case.” Collura, 163 So.2d at 792.

To its credit, State Farm no longer relies on Kroener in support of the circuit court’s final summary judgment. State Farm now relies on Hochberg — the other case that it cited in the circuit court — as authority for affirmance. Hochberg is a construction defect case involving a question about when the statute of limitations began to run on the owners’ claims against certain subcontractors. 63 So.3d at 863-64. We find nothing in Hochberg that undermines the circuit court’s initial ruling — never vacated — that there was a genuine issue of material fact about when the LoBellos should have known that they might have a claim under their policy against State Farm. It follows that the circuit court erred in entering the final summary judgment in favor of State Farm.

V. CONCLUSION

We reverse the final judgment in favor of State Farm and remand this case for further proceedings consistent with this opinion. In considering State Farm’s defense of untimely notice of the claim, the circuit court must follow the two-step analysis outlined above. The question of whether the LoBellos timely reported their claim to State Farm remains to be determined by a jury. If the jury determines that the LoBellos’ notice was untimely, then the LoBellos must overcome the presumption of prejudice in order to prevail on State Farm’s defense based on their alleged failure to comply with the policy’s condition requiring timely notice of the claim.

Reversed and remanded for further proceedings.

KHOUZAM and SLEET, JJ., Concur.

      . The LoBellos initially asserted a claim for declaratory judgment in Count II, alleging that they were in doubt about whether their loss was covered under the policy. The parties stipulated to an order permitting the Lo-Bellos to amend the complaint in August 2010, and the LoBellos filed an amended complaint asserting a breach of contract claim in Count II.

      . In fairness to the circuit court and to State Farm's counsel, we note that all of the decisions cited here were issued after the entry of the final summary judgment under review in this case.

      . We observe that the circuit court was obligated to follow the applicable decisions of the supreme court and this court on the issues presented by State Farm's renewed motion for summary judgment instead of an apparently contrary decision from another district-court of appeal. Pardo v. State, 596 So.2d 665, 666-67 (Fla.1992); Miller v. State, 980 So.2d 1092, 1094 (Fla. 2d DCA 2008). The circumstance that Kroener had then been "recently decided” by the Fourth District did not trump the numerous authoritative decisions from the supreme court and this court that were directly controlling on the issues presented.


author: PER CURIAM.

text:
    Neil BROWN, Petitioner, v. Esther MITTELMAN, Respondent.
    No. 4D14-1748.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2014.
    Rehearing Denied Dec. 19, 2014.

      Sanford R. Topkin of Topkin & Partlow, P.L., Deerfield Beach, for petitioner.
    Warren Kwavnick of Cooney Trybus Kwavnick Peets, Fort Lauderdale, for respondent.
   PER CURIAM.

Non-party, Dr. Neil Brown, petitions this court for a writ of certiorari to quash a discovery order denying his objections to a subpoena duces tecum. Because Florida Rule of Civil Procedure 1.280(b)(5) does not apply to the requested discovery, and because “[a] law firm’s financial relationship with a doctor is discoverable on the issue of bias,” we deny the petition. See Lytal, Reiter, Smith, Ivey & Fronrath, L.L.P. v. Malay, 133 So.3d 1178, 1178 (Fla. 4th DCA 2014).

The underlying litigation is a negligence action arising from an automobile accident. The- plaintiffs attorney, Cindy Goldstein, referred the plaintiff to Dr. Brown, who treated the plaintiff under a letter of protection (“LOP”) agreement. The law firm of Lytal, Reiter, Smith, Ivey & Fronrath, LLP (“Lytal Reiter”) joined as Ms. Goldstein’s co-counsel. Defendant/respondent subsequently subpoenaed the person with the most billing knowledge at Dr. Brown’s office to produce documents regarding patients previously represented by both law firms, LOP cases, and referrals from the plaintiffs attorneys. The trial court overruled Dr. Brown’s objections to the subpoena and compelled discovery of the requested documents. Dr. Brown now petitions this court to quash the discovery order, arguing that rule 1.280(b)(5) prohibits this discovery and that his relationship with Lytal Reiter is not discoverable because there is no evidence that the firm directly referred the plaintiff to Dr. Brown.

A party may attack the credibility of a witness by exposing a potential bias. § 90.608(2), Fla. Stat. (2009). The financial relationship between the treating doctor and the plaintiffs attorneys in present and past cases creates the potential for bias and discovery of such a relationship is permissible. See Morgan, Colling & Gilbert, P.A. v. Pope, 798 So.2d 1, 3 (Fla. 2d DCA 2001); Springer v. West, 769 So.2d 1068, 1069 (Fla. 5th DCA 2000). A physician may derive substantial income from treating patients involved in litigation beyond the provision of services as a retained expert. A jury is entitled to know the extent of the relationship between the treating doctor and the referring law firm. See Allstate Ins. Co. v. Boecher, 733 So.2d 993, 997 (Fla.1999) (“The more extensive the financial relationship between a party and a witness, the more it is likely that the witness has a vested interest in that financially beneficial relationship continuing.”).

The discovery available under rule 1.280(b)(5) does not compel full disclosure of a treating physician’s potential bias. The rule limits discovery to “[a]n approximation of the portion of the expert’s involvement as an expert witness ” based on data such as the “percentage of earned income derived from serving as an expert witness.” Fla. R. Civ. P. 1.280(b)(A)(5)(iii)4. (emphasis added). A. physician’s continued financial interest in treating other patients referred by a particular law firm could conceivably be a source of bias “not immediately apparent to a jury.” Morgan, 798 So.2d at 3. Rule 1.280(b)(5) neither addresses nor circumscribes discovery of this financial relationship.

Whether the law firm directly referred the plaintiff to the treating physician does not determine whether discovery of the doctor/law firm relationship is allowed. In Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060, 1064 (Fla. 4th DCA 2011), we recognized a “direct referral by the lawyer to the doctor” as one circumstance that creates a potential for bias. However, contrary to Dr. Brown’s assertion, we did not intend to limit discovery to that narrow situation. See, e.g., Pack v. Geico Gen. Ins. Co., 119 So.3d 1284 (Fla. 4th DCA 2013) (recognizing that the potential bias arising from a letter of protection exists independent of any referral relationship). A doctor’s referral arrangements -with a law firm in other cases is a proper source for impeachment. Flores v. Miami-Dade Cnty., 787 So.2d 955, 958-59 (Fla. 3d DCA 2001). Thus, the fact that Lytal Reiter did not directly refer the plaintiff to Dr. Brown makes no difference.

Similar to the protections afforded to retained experts under rule 1.280(b), we have recognized that a treating physician witness should be protected from overly-intrusive financial discovery. Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So.3d 200, 203-04 (Fla. 4th DCA 2012). Trial courts have broad discretion to balance the interests involved and generally should not permit extensive discovery of a treating physician’s finances. See Syken v. Elkins, 644 So.2d 539, 544-45 (Fla. 3d DCA 1994), approved, 672 So.2d 517 (Fla.1996). Such overly-intrusive discovery creates a “chilling effect” on the availability of experts willing to serve as witnesses in litigation, id. at 547, and could similarly chill the willingness of doctors to treat patients involved in litigation. This does not mean that all relationships between law firms and treating doctors can be kept hidden from scrutiny. In cases where there is evidence of a referral relationship, more extensive financial discovery may be appropriate from both the law firm and the doctor. See Steinger, Iscoe & Greene, P.A., 103 So.3d at 206.

Respondent is not asking for broad financial discovery. The discovery seeks to uncover an ongoing relationship between Dr. Brown and the plaintiff’s lawyers that might bias the doctor to provide favorable testimony for the plaintiff. The discovery is limited to a reasonable time frame and is not overly-intrusive. Thus, the trial court did not depart from the essential requirements of the law in overruling Dr. Brown’s objections.

We again emphasize that the rule limiting financial discovery from retained experts cannot be used to hide relevant information regarding a treating physician’s possible bias or the reasonableness of the charges at issue in the litigation. See Rediron Fabrication, Inc., 76 So.3d at 1064. Limiting this discovery has “the potential for undermining the truth-seeking function and fairness of the trial.” Boecher, 733 So.2d at 998. As the Second District concluded in a similar case involving discovery of the relationship between an expert and a law firm, “rather than departing from the essential requirements of the law, the circuit court’s order conforms to the trend insuring fairness in the jury trial process by permitting discovery of a financial relationship between a witness and a party or representative.” Morgan, Colling & Gilbert, P.A., 798 So.2d at 3.

Trial courts have broad discretion in controlling discovery and protecting the parties that come before it. We generally will not exercise our certiorari jurisdiction to interfere with that discretion and find no compelling reason to do so here.

Petition Denied.

DAMOORGIAN, C.J., WARNER and TAYLOR, JJ., concur.

      . We clarify dicta in prior opinions perceived as suggesting the contrary. In Katzman v. Ranjana Corp., 90 So.3d 873, 876-79 (Fla. 4th DCA 2012), we merely remanded for the trial court to consider our revised opinion on rehearing in Rediron Fabrication, Inc. We did not restrict discovery to the specific circumstances of Rediron Fabrication, Inc.


author: PER CURIAM. GERBER, J.,

text:
    Joseph CAMMARATA and Judy Cammarata, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 4D13-185.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2014.
    Rehearing Denied Jan. 12, 2015.
    George A. Vaka and Nancy A. Lauten of Vaka Law Group, Tampa, and Kelly L. Kubiak of Merlin Law Group, Tampa, for appellants.
    Paul L. Nettleton of Carlton Fields, P.A., Miami, for appellee.
   PER CURIAM.

The insureds appeal a final summary judgment finding that their bad faith action was not ripe. They argue that because the insurer’s liability for coverage and the extent of their damages has been determined, their bad faith action was ripe. The insurer argues that because the insurer’s liability for breach of contract has not been determined, the insureds’ bad faith action was not ripe. Based on Florida Supreme Court case law, we are compelled to agree with the insureds’ argument. We hold that an insurer’s liability for coverage and the extent of damages, and not necessarily an insurer’s liability for breach of contract, must be determined before a bad faith action becomes ripe. Thus, we reverse and remand for reinstatement of the insureds’ bad faith action in this case.

In this opinion, we first present the policy claim’s chronology. Second, we present the bad faith action’s history, including discussion of our case law. Third, we examine Florida Supreme Court precedent which compels our reversal and our need to recede from one of our recent opinions.

The Policy Claim’s Chronology

October 2005 — The insureds sustained damages to their home as a result of Hurricane Wilma.

September 2007 — The insureds filed a claim for benefits under their homeowners’ policy.

October 2007 — The insurer notified the insureds that it had inspected their home, estimated the amount of their damages to be lower than the policy deductible, and owed no payment to them as a result.

April 2008 — The insureds requested the insurer to participate in the policy’s appraisal process. The insureds’ request identified their appraiser.

May 2008 — The insurer identified its appraiser and requested the insureds’ appraiser’s damage estimate.

June 2008 — The insureds’ appraiser submitted a damage estimate which was higher than the policy deductible.

July 2008 — The insurer’s appraiser submitted a damage estimate which was lower than the policy deductible.

August 5, 2008 — The insurer filed a petition requesting the circuit court to appoint a neutral umpire pursuant to the policy.

August 15, 2008 — The insureds filed a petition requesting the circuit court to appoint a neutral umpire pursuant to the policy.

October 2008 — The circuit court appointed a neutral umpire.

October 16, 2009 — The umpire issued a damage estimate in an amount lower than the insureds’ appraiser’s estimate but higher than the insurer’s appraiser’s estimate. The estimate was higher than the policy deductible.

October 27, 2009 — The insurer’s appraiser agreed to the umpire’s damage estimate.

December 2009 — The insurer paid the insureds the umpire’s damage estimate minus the policy deductible.

April 2010 — The circuit court entered an agreed order dismissing with prejudice the parties’ petitions to appoint a neutral umpire.

The Bad Faith Action’s History

After the circuit court entered the agreed order dismissing with prejudice the parties’ petitions to appoint a neutral umpire, the insureds filed their action against the insurer for not attempting in good faith to settle their claim. See § 624.155(l)(b)l., Fla. Stat. (2011) (“Any person may bring a civil action against an insurer when such person is damaged .... [b]y ... [the insurer’s] [n]ot attempting in good faith to settle claims when, under all the circumstances, [the insurer] could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interestsf.]”). The bad faith action alleged that, before the umpire was appointed, the insureds filed a notice of violation pursuant to section 624.155, Florida Statutes (2011). See § 624.155(3)(a), Fla. Stat. (2011) (“As a condition precedent to bringing an action under this section, the [Department of Financial Services] and the authorized insurer must have been given 60 days’ written notice of the violation.”). The bad faith action further alleged that the insurer did not pay the damages or correct the alleged violation. See § 624.155(3)(d), Fla. Stat. (2011) (“No action shall lie if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected.”).

The insurer filed a motion for summary judgment, and the insureds responded. In support of their positions, the insurer and the insureds each cited a different opinion from this court. We will discuss the motion, the response, and the cited opinions in detail because of the apparent discrepancy between our opinions’ holdings.

The insurer’s motion argued, among other things, that because the insurer’s liability for breach of contract had not been determined, the insureds’ bad faith action was not ripe. In support, the insurer relied on this court’s opinion in Lime Bay Condominium, Inc. v. State Farm Florida Insurance Co., 94 So.3d 698 (Fla. 4th DCA 2012).

In Lime Bay, a dispute arose between the insured and the insurer over the amount of a claim for property' damage suffered during Hurricane Wilma. The insured filed a complaint for. breach of contract against the insurer. The breach of contract action later was abated when the parties engaged in the appraisal process. The appraisal process resulted in an award closer to the amount of the insured’s damage claim. The insurer paid the appraisal award to the insured. The insured then filed an action against the insurer for not attempting in good faith to settle the claim. The insurer filed a motion to dismiss the bad faith action, arguing that there had not been a final- determination of liability and maintaining that it intended to dispute liability in the breach of contract action. The circuit court agreed with the insurer and dismissed the bad faith action as prematurely filed.

We affirmed. Id. at 699. We reasoned that the insured “did not, and could not, allege that there had been a final determination of liability since the [insured’s] breach of contract case was still pending.” Id. (citation omitted). We directed the circuit court to “first resolve the issue of [the insurer’s] liability for breach of contract, as well as the significance, if any, of the appraisal award.” Id. (citation omitted).

In response to the insurer’s reliance on Lime Bay in this case, the insureds argued that only an insurer’s liability for coverage and the extent of damages, and not for breach of contract, must be determined before a bad faith action becomes ripe. In support, the insureds relied on this court’s more recent opinion in Trafalgar at Greenacres, Ltd. v. Zurich American Insurance Co., 100 So.3d 1155 (Fla. 4th DCA 2012).

In Trafalgar, a dispute arose between the insured and the insurer over the amount of a claim for property damage suffered during Hurricane Wilma. The insured filed a complaint for breach of contract against the insurer. The insurer invoked the appraisal provision of the contract. The appraisal process resulted in an award closer to the amount of the insured’s damage claim. The insurer paid the appraisal award to the insured and moved for summary judgment on the breach of contract claim. Meanwhile, the insured moved to amend its complaint to state an action against the insurer for not attempting in good faith to settle. The circuit court granted both the insurer’s motion for summary judgment on the breach of contract claim and the insured’s motion to amend to state a bad faith action. The insurer then moved for summary judgment on the bad faith action. The insurer argued that because the court granted the insurer’s motion for summary judgment on the breach of contract action, the insured faded to obtain a favorable resolution on the breach of contract claim. The circuit court agreed with the insurer and granted summary judgment on the bad faith action. The court rested its decision on a finding that the insured’s ability to assert a bad faith action was dependent upon the insured having obtained a favorable resolution or determination of liability in the underlying breach of contract action. The court reasoned that because the insured lost on summary judgment on the breach of contract action, the insured failed to satisfy that prerequisite and, therefore, was precluded from proceeding with a bad faith action.

We reversed. Id. at 1157-68. We held that an appraisal award which occurred after the insured filed suit for breach of contract, “constitute[d] a ‘favorable resolution’ of an action for insurance benefits, so that [the insured] ... satisfied the necessary prerequisite to filing a bad faith claim.” Id. at 1158. We reasoned that the circuit court’s summary judgment in the insurer’s favor on the breach of contract action was based on the insurer’s compliance with the contract after the appraisal process. Id. at 1157. Thus, we concluded that “the appraisal award was tantamount to a ‘favorable resolution’ necessary to proceed with a bad faith action.” Id. at 1157-58 (citation omitted). We rejected the insurer’s argument that the summary judgment in its favor on the breach of contract action precluded the insured’s ability to pursue the bad faith action. Id. at 1158. Citing our supreme court’s precedent, we reasoned that “[a] judgment on a breach of contract action is not the only way of obtaining a favorable resolution” necessary to proceed with a bad faith action. Id. (citing Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216 (Fla.2006) (an arbitration award establishing the validity of an insured’s claim satisfies the condition precedent required to bring a bad faith action)). However, our opinion in Trafalgar did not mention its apparent discrepancy with Lime Bay.

After considering the parties’ arguments in this case, the circuit court granted the insurer’s motion for summary judgment. In support of its decision, the circuit court relied on Lime Bay.

After the circuit court entered a final judgment, this appeal followed. As in the circuit court, the insureds argue that because the insurer’s liability for coverage and the extent of their damages has been determined, their bad faith action was ripe. The insurer again argues that because the insurer’s liability for breach of contract has not been determined, the insureds’ bad faith action was not ripe.

Our review is de novo. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001) (“The standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo.”) (footnote omitted).

Supreme Court Precedent Compelling Our Reversal

Based on our supreme court’s precedent, we are compelled to agree with the insureds’ argument. We hold that an insurer’s liability for coverage and the extent of damages, and not an insurer’s liability for breach of contract, must be determined before a bad faith action becomes ripe. Our holding is based on the evolution of our supreme court’s holdings from Blanchard v. State Farm Mutual Automobile Insurance Co., 575 So.2d 1289 (Fla.1991), to Vest v. Travelers Insurance Co., 753 So.2d 1270 (Fla.2000). We address each case in detail.

In Blanchard, the insureds filed a breach of contract action against their insurer in state court. The insureds won a verdict against the insurer. The insureds then filed an action against the insurer in federal court for bad faith failure to settle. The insurer moved to dismiss the bad faith action. The insurer argued that the insureds had to assert their bad faith action along with the breach of contract action in state court. The federal district court granted the motion to dismiss.

On review, the Eleventh Circuit Court of Appeals certified to our supreme court the following question: “Does an insured’s claim ... under section 624.155(l)(b)l., Florida Statutes, for allegedly failing to settle the ... claim in good faith accrue before the conclusion of the underlying litigation for the contractual ... benefits?” Blanchard v. State Farm Mut. Auto. Ins. Co., 903 F.2d 1398, 1400 (11th Cir.1990).

In response, our supreme court answered:

[A]n insured’s underlying first-party action for insurance benefits against the insurer necessarily must be resolved favorably to the insured before the cause of action for bad faith in settlement negotiations can accrue. It follows that an insured’s claim ... for failing to settle the claim in good faith does not accrue before the conclusion of the underlying litigation for the contractual ... benefits. Absent a determination of the existence of liability ... and the extent of the [insured’s] damages, a cause of action cannot exist for a bad faith failure to settle.

Blanchard, 575 So.2d at 1291.

Reading Blanchard ⅛ certified question and answer in a vacuum, without the knowledge of the procedural context in which it arose — the pre-existence of a breach of contract action — the reader logically might assume that an insured must have filed a breach of contract action, and then obtained a favorable resolution of the breach of contract action, before a bad faith action accrues. However, no language in Blanchard expressly states that an insured must have filed any breach of contract action before a bad faith claim accrues. Rather, another interpretation of Blanchard is that: (1) the insured need only obtain a “determination of the existence of liability ... and the extent of the [insured’s] damages” on the underlying claim “before the cause of action for bad faith in settlement negotiations can accrue”; and (2) Blanchard’s references to the “underlying first-party action for insurance benefits” and “underlying litigation for the contractual ... benefits” being “resolved favorably to the insured before the cause of action for bad faith in settlement negotiations can accrue” related only to the procedural context under which Blanchard arose.

The latter interpretation of Blanchard appears to have been articulated by our supreme court’s later opinion in Vest. In Vest, the insured demanded her insurer to pay its policy limits on her claim. After the insurer did not pay its policy limits, the insured filed an action claiming that the insurer refused to settle and acted in bad faith in failing to pay its policy limits. The insurer later paid its policy limits to the insured. The insurer then filed a motion for summary judgment on the bad faith action. The circuit court granted the motion because the insurer had paid its policy limits to the insured. On appeal, the district court affirmed. Vest v. Travelers Ins. Co., 710 So.2d 982, 984 (Fla. 1st DCA 1998).

However, our supreme court quashed the district court’s decision with direction that the insured’s bad faith action be allowed to proceed. Vest, 753 So.2d at 1276. The supreme court reasoned:

We understand that [Blanchard ⅛] language, “Absent a determination of the existence of liability ... and the extent of the plaintiffs damages, a cause of action cannot exist for a bad faith failure to settle,” ... may be so broadly stated that our holding could be read as the district court has read it. For that reason we will here clarify.
First, we point out that Blanchard arose in the context of a certified question arising out of an issue as to whether the failure to pursue a bad-faith action for violation of section 624.155(1)(b)l [.] in an action for breach of the underlying insurance contract for nonpayment of benefits was the improper splitting of a cause of action. We held that it was not. Our decision in that case had to do with the timing of the bringing of causes of actions and not as to what claims could be pursued when a claim for bad faith ripened.
Second, we expressly state that Blanchard is properly read to mean that the “determination of the existence of liability ... and the extent of the [insured’s] damages” are elements of a cause of action for bad faith. Once those elements exist, there is no impediment as a matter of law to a recovery of damages for violation of section 624.155(l)(b)l[.] dating from the date of a proven violation.
Therefore, in this case, the trial court erred in ruling as a matter of law that there was no claim for bad faith for acts which occurred prior to the approval of the settlement .... An action prior to that settlement was premature and was subject to dismissal without prejudice. However, upon that settlement, the claim for bad-faith damages accrued from the date the violation of section 624.155(l)(b)l[.] ripened because at that time the final element of the cause of action occurred.
In sum, we expressly hold that a claim for had faith pursuant to section 624,.155(l)(h)l[.J is founded upon the obligation of the insurer to pay when all conditions under the policy would require an insurer exercising good faith and fair dealing towards its insured to pay. This obligation on the part of an insurer requires the insurer to timely evaluate and pay benefits owed on the insurance policy. We hasten to point out that the denial of payment does not mean an insurer is guilty of bad faith as a matter of law. The insurer has a right to deny claims that it in good faith believes are not owed on a policy. Even when it is later determined by a court or arbitration that the insurer’s denial was mistaken, there is no cause of action if the denial was in good faith. Good-faith or bad-faith decisions depend upon various attendant circumstances and usually are issues of fact to be determined by a fact-finder.
We continue to hold in accord with Blanchard that bringing a cause of action in court for violation of section 624.155(l)(b)l[.] is premature until there is a determination of liability and extent of damages owed on the first-party insurance contract.

Id. at 1275-76 (emphasis added).

In reaching the foregoing holding in Vest, the supreme court cited with approval our decision in Brookins v. Goodson, 640 So.2d 110 (Fla. 4th DCA 1994). The supreme court described the issue in Broo-kins as “whether a settlement constituted the ‘determination of damages’ required by Blanchard .... ” Vest, 753 So.2d at 1273. The supreme court then quoted from Brookins the following excerpt of our holding and reasoning:

The supreme court has recently held that to state a cause of action for first party bad faith there must be an allegation that there has been a determination of the insured’s damages. Imhof v. Nationwide Mut. Ins. Co., 643 So.2d 617 (Fla.1994). The court did not, however, require that the damages be determined by litigation, that there be an allegation of a specific amount of damages or that the damages be in excess of the policy limits. The court was not faced with the circumstance presented here where the policy limits are subsequently tendered by the insurer. The insured in Imhof received an award of damages through arbitration of an amount less than the policy limits. The amount or extent of damages was held not to be determinative of whether an insured could bring a first party bad faith claim; the purpose of the allegation concerning a determination of damages was to show that “Imhof had a valid claim.” Id. at 618.
We hold that the payment of the policy limits by the insurer here is the functional equivalent of an allegation that there has been a determination of the insured’s damages. It satisfies the purpose for the allegation — to show that the insured had a valid claim.
Neither in Blanchard nor more recently in Imhof does the supreme court suggest that the required resolution of the insured’s underlying claim must be by trial or arbitration .... However, as noted in Blanchard, a resolution of some kind in favor of the insured is a prerequisite. There was a favorable resolution here.

Vest, 753 So.2d at 1273-74 (quoting Broo-kins, 640 So.2d at 112-13) (emphasis added).

Based on Vest’s clarification of Blanchard and reliance on Brookins, we are compelled to hold that an insurer’s liability for coverage and the extent of damages, and not an insurer’s liability for breach of contract, must be determined before a bad faith action becomes ripe. To paraphrase Vest, the determination of the existence of liability and the extent of the insured’s damages are the conditions precedent to a bad faith action, along with the notice requirement of section 624.155(3)(a), Florida Statutes (2011). Those first two. conditions may be established when a settlement determines the existence of liability and the extent of the insured’s damages. As stated in Brookins, and as approved in Vest, that settlement does not require the damages to be determined by litigation.

Applying the foregoing principles here, the parties’ settlement via the appraisal process, which determined the existence of liability and the extent of the insured’s damages, established the first two conditions precedent of a bad faith action. Put another way, the appraisal award “eonstitute[d] a ‘favorable resolution’ of an action for insurance benefits, so that [the insured] ... satisfied the necessary prerequisite to filing a bad faith claim.” Trafalgar, 100 So.3d at 1158. Thus, the circuit court erred in finding that, because the insurer’s liability for breach of contract had not been determined, the insureds’ bad faith action was not ripe.

We have considered the insurer’s arguments for affirmance. We conclude, without further discussion, that those arguments lack merit.

Based on the foregoing, we reverse and remand for reinstatement of the insureds’ bad faith action. We take no position on whether the bad faith action has merit.

Because of the conflict between this court’s opinion in Lime Bay versus (1) the supreme court’s opinion in Vest, (2) this court’s opinion in Trafalgar, and (3) today’s opinion, we are compelled to recede from Lime Bay to the extent it held that an insurer’s liability for breach of contract must be determined before a bad faith action becomes ripe, even though the insurer’s liability for coverage and the extent of the insured’s damages already have been determined by an appraisal award favoring the insured.

However, we stand by our numerous prior opinions holding that, where the insurer’s liability for coverage and the extent of damages have not been determined in any form, an insurer’s liability for the underlying claim and the extent of damages must be determined before a bad faith action becomes ripe. See, e.g., State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So.3d 809, 810 (Fla. 4th DCA 2010) (quashing order denying motion to abate bad faith action “because the final determination of coverage and damages for the underlying claim has not been made, which must precede a- statutory bad faith action”).

Reversed and remanded.

DAMOORGIAN, C.J., STEVENSON, GROSS, TAYLOR, MAY, CIKLIN, GERBER, LEVINE, CONNER, FORST, and KLINGENSMITH, JJ., concur.

WARNER, J., recused.

GERBER, J., concurs specially with an opinion, in which CONNER, FORST, and KLINGENSMITH, JJ., concur.

GERBER, J.,

concurring specially.

Based on Vest ⅛ controlling nature, I am compelled to concur in the majority opinion. I write separately to express my concern regarding the possible effect of the majority opinion.

In theory, the majority opinion would open the door to allow an insured to sue an insurer for bad faith any time the insurer dares to dispute a claim, but then pays the insured just a penny more than the insurer’s initial offer to settle, without a determination that the insurer breached the contract. Such a slippery slope would appear to conflict with the supreme court’s own warning in Vest:

We hasten to point out that the denial of payment does not mean an insurer is guilty of bad faith as a matter of law. The insurer has a right to deny claims that it in good faith believes are not owed on a policy.

753 So.2d at 1275 (emphasis added).

This slippery slope may be avoided if an insured was required either to: (1) establish an insurer’s liability for breach of contract as a condition precedent to suing an insurer for bad faith; or (2) obtain a settlement amount which is at least a certain percentage above the insurer’s initial offer to settle. However, any such requirement is one which the legislature must impose through an amendment to section 624.155, Florida Statutes (2011). This court is unable to impose any such requirement because of Vest’s controlling nature. But see State Farm Mut. Auto. Ins. Co. v. Brewer, 940 So.2d 1284, 1286 n. 3 (Fla. 5th DCA 2006) (“To obtain a, determination regarding liability and the extent of damages owed on the insurance contract [to allow a statutory bad faith claim to proceed], [the insured] would need to bring an action on the contract (emphasis added).

The policy claim history in this case provides a good example of why the legislature may wish to require an insured to establish an insurer’s liability for breach of contract, or to obtain a settlement amount which is at least a certain percentage above the insurer’s initial offer to settle, as a condition precedent to suing an insurer for bad faith. Here, after the insureds took two years to file their Hurricane Wilma claim, the insurer took only one month to inspect their home and estimate the amount of their damages. Then, after the insureds took six more months to request the insurer to participate in the policy’s appraisal process, the insurer took only one month to agree to the appraisal process. When the parties’ appraisers did not agree on a damage estimate, it was the insurer, and not the insureds, which first filed a petition requesting the circuit court to appoint a neutral umpire. Within two months of the neutral umpire issuing its own damage estimate, the insurer paid the insureds the neutral umpire’s damage estimate minus the policy deductible.

In sum, the record here provides no basis indicating that the insurer breached the contract, much less failed to act in good faith to settle the claim. On the contrary, the record here indicates that the insurer merely exercised its rights under the contract’s agreed-upon dispute resolution process of appraisal. The insurer’s exposure should be at an end. As our sister court stated in Hill v. State Farm Florida Insurance Co., 35 So.3d 956 (Fla. 2d DCA 2010):

The appraisal process ... is not legal work arising from an insurance company’s denial of coverage or breach of contract; it is simply work done within the terms of the contract to resolve the claim. Thus, except under the most extraordinary of circumstances, we do not envision fees for such work to be recoverable .... Instead, the fees should normally be limited to the work associated with filing the lawsuit after the insurance carrier has ceased to negotiate or has breached the contract and the additional legal work [is] necessary and reasonable to resolve the breach of contract.

Id. at 961 (emphasis added). See also Nationwide Prop. & Cas. Ins. v. Bobinski, 776 So.2d 1047, 1049 (Fla. 5th DCA 2001) (“[I]t maintains the better policy of this state to encourage insurance companies to resolve conflicts and claims quickly and efficiently without judicial intervention. Arbitration and appraisal are alternative methods of dispute resolution that provide quick and less expensive resolution of conflicts.”). Cf. State Farm Fla. Ins. Co. v. Silber, 72 So.3d 286, 289-90 (Fla. 4th DCA 2011) (after insurer paid appraisal award, insureds had no cause of action against insurer to recover attorney’s fees under section 627.428, Florida Statutes, because the purpose of the appraisal process is to resolve disputes without litigation).


author: WARNER, J.

text:
    SAFECO INSURANCE COMPANY OF ILLINOIS, Petitioner, v. Christine A. BEARE, Respondent.
    No. 4D13-3104.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2014.
    Rehearing En Banc Denied Dec. 31, 2014.

      Mark S. Shapiro, James A. Bombulie and Ross E. Linzer of Akerman Senterfitt, Miami, for petitioner.
    Philip M. Burlington and Adam J. Richardson of Burlington & Roekenbach, P.A., West Palm Beach, and David M. Alpizar of Alpizar Law, LLC, Palm Bay, for respondent.
   WARNER, J.

Petitioner, Safeco Insurance Company, challenges the trial court’s order abating plaintiffs claim against it for bad faith refusal to settle the plaintiffs uninsured/underinsured motorist (“UM”) claim, rather than dismissing the claim in favor of a separate suit. Petitioner contends that the abatement precludes it from removing the case to federal court. Although we have held, in a third party bad faith case, that an order which prevented removal of a case to federal court constituted irreparable harm and departed from the essential requirements of law, in this case we conclude that, even though petitioner may not be able to remove its case, the trial court did not depart from the essential requirements of law.

In 2011, Christine Beare sued third party tortfeasors as a result of an automobile accident. The parties agreed to a settlement in October 2012. Thereafter, Beare was granted leave to amend her complaint to add her insurance carrier, Safeco. She added claims for UM benefits under her policy and for bad faith refusal to settle her claim. Safeco was served in January 2013. It answered the UM claim and moved to dismiss the bad faith claim as premature. Instead, at the urging of Beare, the court abated the bad faith count.

In its petition, Safeco claims that it has been irreparably harmed by the denial of its motion to dismiss the bad faith claim. Because the claim was an amendment to the original negligence suit, which was filed more than one year prior to Safeco’s joinder, Safeco claims that this prevents it from removing the claim to federal court. In the Southern District of Florida, the federal courts have taken that position. See, e.g., Potts v. Harvey, 2011 WL 4637132, at *1 (S.D.Fla. Oct. 6, 2011); Moultrop v. GEICO Gen. Ins. Co., 858 F.Supp.2d 1342, 1346-47 (S.D.Fla.2012); van Niekerk v. Allstate Ins. Co., 2013 WL 253693, at *2 (S.D.Fla. Jan. 23, 2013); Hoggins v. Mid-Continent Cas. Co., 2013 WL 394882, at *2-4 (S.D.Fla. Jan. 31, 2013). Therefore, Safeco claims it will suffer irreparable injury by being compelled to litigate its bad faith claim in state court and losing its right of removal to federal court if the bad faith claim is not severed and dismissed from this suit. It claims that the court departed from the essential requirements of law because Vest v. Travelers Insurance Co., 758 So.2d 1270, 1276 (Fla.2000), holds that a first party bad faith claim filed prior to determination of liability and damages under the contract between the insurer and insured is not ripe and should be dismissed as premature.

In Williams v. Oken, 62 So.3d 1129 (Fla.2011), the court reiterated the requirements to obtain certiorari relief:

Before a court may grant certiorari relief from the denial of a motion to dismiss, the petitioner must establish the following three elements: “ ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case[,] (3) that cannot be corrected on postjudgment appeal.’ ” ' Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002)). In other words, certiorari relief is available when a lower court has departed from the essential requirements of the law or when a lower court has acted in excess of its jurisdiction, and no appeal or direct method of reviewing the proceeding exists. See Haines [City Community Development v. Heggs ], 658 So.2d [523] at 527 [ (Fla.1995) ]. The last two elements are jurisdictional and must be analyzed before the court may even consider the first element. See id.; Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648-49 (Fla. 2d DCA 1995).

Id. at 1132.

We have held several times that the loss of the right to remove a case to federal court constitutes a material irreparable injury. See Beazley Ins. Co. v. Banerjee, 123 So.3d 1184, 1185 (Fla. 4th DCA 2013); GEICO Gen. Ins. Co. v. Harvey, 109 So.3d 236, 238 (Fla. 4th DCA 2013); Sunrise Mills (MLP) Ltd. P’ship v. Adams, 688 So.2d 464, 465 (Fla. 4th DCA 1997). In nearly identical circumstances to those present in this case, the First District disagreed with Harvey and held that if the trial court improperly denied a motion to dismiss a bad faith claim, it could be remedied on appeal, thus precluding certiorari jurisdiction. See Safeco Ins. Co. of Illinois v. Rader, 132 So.3d 941, 946 (Fla. 1st DCA 2014). And the Fifth District has held that certiorari is not available to preserve a litigant’s right to remove a case to federal court. Cont’l Baking Co. v. Vincent, 634 So.2d 242, 244 (Fla. 5th DCA 1994). For the purposes of this opinion, we follow Banerjee, Harvey, and Sunrise Mills and conclude that the inability to remove the action to federal court constitutes irreparable harm, thus establishing our jurisdiction to consider certiorari relief.

We deny relief, however, because Safeco has not shown that the trial court departed from the essential requirements of law. In State Farm Mutual Automobile Insurance Co. v. Tranchese, 49 So.3d 809, 810 (Fla. 4th DCA 2010), we held that where a first party bad faith action is joined with a claim for UM benefits, the appropriate relief is to abate the bad faith action until liability and damages under the policy have been established. Harvey is in accord, as it distinguished Tranchese on the grounds that it involved a first party bad faith claim, rather than a third party bad faith claim. Harvey, 109 So.Bd at 239-40. We also allowed the trial court to either dismiss or abate a bad faith action until the underlying breach of contract action was determined in Landmark American Insurance Co. v. Studio Imports, Ltd., 76 So.3d 963, 964 (Fla. 4th DCA2011).

Safeco maintains, however, that the Florida Supreme Court’s holding in Vest compels dismissal of the bad faith action, rather than abatement. Vest did state that where a bad faith claim is prematurely filed, it should be dismissed. 753 So.2d at 1276. However, in that case the trial court had granted summary judgment on the bad faith claim, and the court was commenting that a premature claim was not subject to summary judgment but rather should be dismissed as premature. Id. The issue was therefore the choice between summary judgment and dismissal, not between abatement and dismissal. Later, in Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121, 1130 (Fla.2005), where the court considered what discovery would be allowed in bad faith actions, the supreme court suggested the use of abatement as a tool where coverage and bad faith actions were filed together. Thus, it is not clear that Vest provides the only method of handling a premature bad faith claim.

Because the case law supports the trial court’s abatement of the bad faith action in lieu of dismissal, we cannot conclude that the trial court departed from the essential requirements of law. Vest does not appear to foreclose abatement. If we are wrong in our interpretation of Vest, then Safeco can seek to invoke the discretionary jurisdiction of the supreme court to clarify the matter.

Petition denied.

STEVENSON and GROSS, JJ., concur.

      . In the Middle District of Florida, however, some courts have allowed removal in these same circumstances. See, e.g., Lahey v. State Farm Mut. Auto. Ins. Co., 2007 WL 2029334, at *2 (M.D.Fla. July 11, 2007); Love v. Prop. & Cas. Ins. Co. of Hartford, 2010 WL 2836172, at *2-3 (M.D.FIa. July 16, 2010). There is no Eleventh Circuit opinion reconciling these differing views.


author: RAY, J.

text:
    VMI ENTERTAINMENT, LLC, a Florida limited liability company, Appellant, v. WESTWOOD PLAZA, LLC; GM Entertainment, LLC; Murat Datiev; and Alla Maze, Appellees.
    No. 1D13-5111.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2014.

      Louis J. Terminello of Terminello & Terminello, P.A., Miami, for Appellant.
    J. Layne Smith, General Counsel, and Andrew Rubin Fier, Assistant General Counsel, Department of Business and Professional Regulation, Tallahassee, Amicus Curiae in support of Appellant VMI Entertainment, LLC.
    William H. Crawford of Thompson, Crawford & Smiley, Tallahassee, for Ap-pellee Westwood Plaza, LLC.
   RAY, J.

VMI Entertainment, LLC, appeals from an order denying a motion to dissolve a writ of attachment entered in favor of Westwood Plaza, LLC. VMI raises two issues, only one of which merits discussion. VMI claims that the circuit court erred in granting a writ of attachment against its alcoholic beverage license. We agree and reverse the order refusing to dissolve this aspect of the writ of attachment. In all other respects, we affirm.

Westwood Plaza leased commercial property to VMI. VMI defaulted on the lease and, as a result, became indebted to Westwood Plaza in the amount of $58,626.05. Westwood Plaza then obtained an ex parte writ of attachment commanding each sheriff of the state to “take into custody so much of the lands, tenements, goods, and chattels” belonging to VMI as is required to satisfy the sum of $53,626.05, and costs. The writ specifically states that this command applies to VMI’s alcoholic beverage license.

A writ of attachment “serves as a lien upon property which may be the subject of execution upon a later-obtained judgment.” Cerna v. Swiss Bank Corp., 503 So.2d 1297, 1298 (Fla. 3d DCA 1987). The right to attachment and the parameters of a creditor’s ability to secure his or her claims against an alcoholic beverage license are both established by statutes. Ch. 76, Fla. Stat. (2013); § 561.65(4), Fla. Stat. (2013). Therefore, whether an alcoholic beverage license may be the subject of a writ of attachment is a question of statutory construction. We review such questions de novo. Waste Mgmt., Inc. v. Mora, 940 So.2d 1105, 1107 (Fla.2006).

Section 76.01, Florida Statutes (2013), provides that “[a]ny creditor may have an attachment at law against the goods and chattels, lands, and tenements of his or her debtor under the circumstances and in the manner hereinafter provided.” Although it is clear that an alcoholic beverage license is not land or a tenement, it is not entirely clear that such a license does not fall under the category of “goods and chattels.” The Florida Supreme Court has determined that an alcoholic beverage license is a “general intangible,” which is conferred on the holder by the state for the privilege of selling alcoholic beverages. Walling Enters., Inc. v. Mathias, 636 So.2d 1294, 1296-97 (Fla.1994). While the term “goods and chattels” occasionally refers to tangible personal property only, the term is typically used in a loose sense to refer to “personal property of any kind.” Black’s Law Dictionary 702 (7th ed. 1999). Therefore, the plain language of section 76.01 does not answer the question presented in this appeal.

We neéd not delve further into the meaning of “goods and chattels,” because section 561.65(4), Florida Statutes (2013), which is more specific to alcoholic beverage licenses, precludes attachment of such a license, even if section 76.01 ordinarily applies to general intangibles. Section 561.65(4) prescribes the manner in which a lien or security interest in a “spirituous alcoholic beverage license” may be enforceable against the license. This procedure requires the recording of a lien or security interest with the Division of Alcoholic Beverages and Tobacco on forms authorized by the Division within ninety days of the creation of such an interest. § 561.65(4). The Florida Supreme Court has held that this statute provides the exclusive means of perfecting a lien on an alcoholic beverage license. United States v. McGurn, 596 So.2d 1038, 1041 (Fla.1992). Therefore, chapter 76, which does not mention alcoholic beverage licenses, cannot provide an alternative means of perfecting a lien through a writ of attachment. See also Murray v. Mariner Health & Ace USA, 994 So.2d 1051, 1061 (Fla.2008) (recognizing that a specific statute controls over a general one).

The Division, which has filed an amicus brief in this appeal, opines that a writ of attachment cannot satisfy the requirements of section 561.65(4) and relies on this statute to oppose the order under review. Given the deference due to the Division on this subject, we find that its position bolsters our analysis. See Level S Commc’ns, LLC v. Jacobs, 841 So.2d 447, 450 (Fla.2003) (“An agency’s interpretation of the statute it is charged with enforcing is entitled to great deference”).

For the foregoing reasons, we hold that an alcoholic beverage license is not subject to attachment under chapter 76. Accordingly, we reverse the order denying VMI’s motion to dissolve the writ to the extent it encompasses VMI’s alcoholic beverage license and remand for entry of an order consistent with this opinion. Otherwise, we affirm.

AFFIRMED in part; REVERSED in part; and REMANDED.

WOLF and PADOVANO, JJ., concur.