author: PERRY, J. CANADY, J.,

text:
    Merly NUNEZ a/k/a Nunez Merly, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee.
    No. SC12-650.
    Supreme Court of Florida.
    June 27, 2013.

      Juan C. Montes of Lidsky & Montes, Attorneys at Law, P.A., Hialeah, FL, for Appellant.
    Frank Z. Zacherl, Suzanne Youmans La-brit, and Jerel C. Dawson of Shutts & Bowen LLP, Tampa, FL, for Appellee.
    Cynthia S. Tunnicliff and Gerald Don Nelson Bryant IV of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, FL, for Amici Curiae Florida Justice Reform Institute, Florida Insurance Council, and Personal Insurance Federation of Florida.
    Peter J. Valeta of Meckler Bulger Tilson Marick & Pearson LLP, Chicago, IL, for Amici Curiae Property Casualty Insurers Association of America and Allstate Insurance Company.
    Marlene S. Reiss, Miami, FL, for Ami-cus Floridians for Fair Insurance, Inc.
   PERRY, J.

This case is before the Court for review of a question of Florida law certified by the Eleventh Circuit Court of Appeals as being determinative of a cause pending in that court and for which there appears to be no controlling precedent. Specifically, the Eleventh Circuit asks “[w]hether, under FLA. STAT. § 627.736, an insurer can require an insured to attend an [examination under oath] as a condition precedent to recovery of [personal injury protection] benefits?” Nunez v. Geico Gen. Ins. Co., 685 F.3d 1205, 1211 (11th Cir.2012). We have jurisdiction. See art. V, § 3(b)(6), Fla. Const.

We answer the certified question in the negative as to section 627.736, Florida Statutes (2008), and confirm our statement in Custer Medical Center v. United Automobile Insurance Co., 62 So.3d 1086, 1091 (Fla.2010), that “[t]he Florida No-Fault statute is mandatory and does not recognize such a condition. It is therefore invalid and contrary to the statutory terms.” A recent amendment to section 627.736 provides otherwise, but did not take effect until January 1, 2013, and does not inform or control our disposition of the present case. See ch. 12-197, § 10, at 2737, 2752, Laws of Fla. (now codified in § 627.736(6)(g), Fla. Stat. (2012)).

I. FACTS/PROCEDURAL HISTORY

Merly Nunez’s automobile insurance policy with the Government Employees Insurance Company (Geico) included personal injury protection coverage (PIP) and a condition that “[t]he insured or any other person seeking coverage under this policy must submit to examination under oath [EUO ] by any person named by us when and as often as we may reasonably require.” Geico denied Nunez’s PIP claim for failing to satisfy this condition after she was injured in a car accident on September 17, 2008. She alleged that Geico had thereby violated Florida’s PIP statute (section 627.736, Florida Statutes (2008)) in a class action complaint seeking a declaratory judgment filed in state circuit court on October 26, 2009. See Nunez, 685 F.3d at 1207. The action was removed to a federal district court, which ultimately granted Geico’s dismissal motion upon ruling in pertinent part:

[Nunez] asks the Court to determine whether Florida’s PIP Statute ... permits EUO’s as a prerequisite to receiving PIP benefits. [Geico] points out, and the Court agrees, that there is no language in the PIP statute prohibiting an insurer from requiring an EUO, or from imposing any other reasonable requirements when filing claims. [Nunez] contends that PIP’s enactment limited an insured’s constitutional right of access to courts and, because of such limitation, the statute specifically outlines the limitations that can be imposed and required of the insured as ... conditions to receiving benefits. Moreover, [Nunez] fails to cite any case, and the Court has found none on its own research, which states that an insurer was precluded from denying an insured benefits, based on the insured’s refusal to attend an EUO.

Nunez v. Geico General Ins. Co., 22 Fla. L. Weekly Fed. D295, D295, 2010 WL 1924441, *2 (S.D.Fla. Apr. 13, 2010). The federal district court denied Nunez’s motion for reconsideration, whereupon she filed a notice of appeal to the Eleventh Circuit Court of Appeals on July 2, 2010.

While that appeal was still pending, this Court on November 4, 2010, issued its opinion in Custer, stating as to EUOs that “[t]he Florida No-Fault statute is mandatory and does not recognize such a condition. It is therefore invalid and contrary to the statutory terms.” 62 So.3d at 1091. In subsequent briefing in the Eleventh Circuit, Nunez and Geico disputed whether this and related statements in ' Custer amounted to a holding or dicta. Upon examining Custer, the PIP statute, and relevant caselaw, the Eleventh Circuit concluded that Florida law was unclear, and certified the following question to this Court: ‘Whether, under FLA. STAT. § 627.736, an insurer can require an insured to attend an EUO as a condition precedent to recovery of PIP benefits?” Nunez, 685 F.3d at 1211 (issued April 3, 2012).

About a month later, on May 4, 2012, Governor Rick Scott approved amendments to the PIP statute effective January 1, 2013, including the requirement that insureds seeking benefits under the Florida Motor Vehicle No-Fault Law “comply with the terms of the policy, which include, but are not limited to, submitting to an examination under oath.” Ch. 12-197, § 10, at 2737, 2752, Laws of Fla. (now codified in § 627.736(6)(g), Fla. Stat. (2012)).

II. ANALYSIS

In disputing the meaning of section 627.736, Florida Statutes (2008), the parties and amici curiae in this case primarily argue in terms of Custer and the 2012 amendment of the PIP statute. We address those arguments in turn below, applying the de novo standard of review. See generally Osborne v. Dumoulin, 55 So.3d 577, 581 (Fla.2011) (recognizing in the present posture of answering a question certified by the Eleventh Circuit that “[t]he determination of the meaning of a statute is a question of law and thus is subject to de novo review”).

A. Custer

EUOs were not directly at issue in Custer, in which this Court’s primary holding was that the underlying district court of appeal had misapplied the standard of review on second-tier certiorari review of a case involving an insurance company’s denial of PIP benefits based on the insured’s failure to appear for a medical examination. 62 So.3d at 1088-89. In discussing that misapplication, this Court referenced the fact that,

to support its analysis that attendance at a medical examination was a condition precedent to coverage, the district court incorrectly characterized a letter concerning [the insured’s] failure to attend a testimonial examination under oath in August, not a medical exam, as referencing [the insured’s] failure to attend the medical examinations scheduled in April. Of note, the letter does not support the [district court’s] condition precedent analysis because the relevant quote in the letter is from the policy, which designates attendance at a testimonial examination under oath, not a medical examination, as a condition precedent to receiving PIP benefits.

Id. at 1094-95. In earlier discussing the letter, the Court explained in a footnote that,

[although the district court of appeal mentions a letter of September 9, 2002, that letter is related to a purported verbal examination under oath with a prohibition of the presence of counsel for an insured, not a medical exam. The concept of a verbal examination under oath is not relevant due to the posture of this case and positions of the parties. The only argument in this case at the trial court, circuit court, and district court of appeal was based upon medical exams and the failure to attend medical exams. A purported verbal exam under oath without eounsel[] in the PIP context is invalid and more restrictive than permitted by the statutorily mandated coverage and the terms and limitations permitted under the statutory provisions. The prohibition of policy exclusions, limitations, and non-statutory conditions on coverage controlled by statute is clear. See Flores v. Allstate Ins. Co., 819 So.2d 740, 745 (Fla.2002) (noting that courts have an obligation to invalidate exclusions on coverage that are inconsistent with the purpose of the statute that mandates the coverage); Salas v. Liberty Mut. Fire. Ins. Co., 272 So.2d 1, 5 (Fla.1972) (recognizing that insurance coverage that is a creature of statute is not susceptible to the attempts of the insurer to limit or negate the protection afforded by the law); Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229, 232-34 (Fla.1971) (stating that automobile liability insurance and uninsured motorist coverage obtained to comply with or conform to the law cannot be narrowed by the insurer through exclusions and exceptions contrary to the law); Diaz-Hernandez v. State Farm Fire & Casualty Co., 19 So.3d 996, 1000 (Fla. 3d DCA 2009) (concluding that a provision in a policy was invalid because it was against the public policy of the statute); Vasques v. Mercury Cas. Co., 947 So.2d 1265, 1269 (Fla. 5th DCA 2007) (stating that restrictions on statutorily mandated coverage must be carefully examined because exclusions that are inconsistent with the purpose of the statute are invalid) (citing Flores, 819 So.2d at 745). PIP insurance is markedly different from homeowner’s/tenants insurance, property insurance, life insurance, and fire insurance, which are not subject to statutory parameters and are simply a matter of contract not subject to statutory requirements.

Custer, 62 So.3d at 1089 n. 1 (footnote added); accord at 1095-96 (stating that attendance at a EUO without counsel as a condition precedent to coverage is “contrary to the general principles of law concerning affirmative defenses and conditions precedent, as well as the principles underlying the PIP statute”). In distinguishing a case initially cited by the district court, this Court in Custer stated that “Goldman [v. State Farm General Insurance Co., 660 So.2d 300, 301 (Fla. 4th DCA 1995),] involved a homeowners insurance policy and the insured’s failure to attend an examination under oath pursuant to the contractual terms of the policy, which has no application in the statutorily required coverage context. The Florida No-Fault statute is mandatory and does not recognize such a condition. It is therefore invalid and contrary to the statutory terms.” Custer, 62 So.3d at 1091.

The Eleventh Circuit considered our statements on EUOs in Custer to be dicta. Nunez, 685 F.3d at 1208. Regardless, most reported county and circuit court cases have affirmatively applied Custer in the EUO context. For example, in comprehensively addressing several such cases, one circuit court ruled:

An EUO policy provision in the context of PIP is not a condition precedent to coverage or recovery of PIP benefits as it conflicts with the Florida No—Fault law. Custer Medical Center v. United Auto. Ins. Co., 62 So.3d 1086 (Fla.2011); United, Auto. Ins. Co. v. Diaz, 18 Fla. L. Weekly Supp. 348a (11th Cir.Ct.(Appellate) Feb. 3, 2011). “[T]he PIP statute does not impose an EUO condition upon the insured.” United v. Diaz. While an insurer may seek to require an EUO through its policy where a PIP claim is presented, the Court finds that failure for the insured to attend an EUO does not serve as a bar to payment of PIP benefits. See Mejias Medical Center a/a/o Yordanka Bulit v. Esurance, 18 Fla. L. Weekly Supp. 693d (11th Cty Ct., Feb. 3, 2011). In reaching this conclusion, the Court has considered Mercury Insurance Company v. Dr. Gamdo a/a/o Erix Dolz, 18 Fla. L. Weekly Supp. 575a (11th Cir.Ct.(Appellate) Apr. 7, 2011) (finding that an EUO provision is not a condition precedent to recovery of benefits and calling into question the validity of such provisions) and State Farm Fire & Casualty Company v. Suncare Physical Therapy, 18 Fla. L. Weekly Supp. 776a (11th Cir.Ct.(Appellate) July 13, 2011) (finding an EUO provision is a valid condition precedent to suit). The Court rules consistent with the rulings of Diaz and Gamdo.

Y & M Med. Ctr. v. State Farm Fire & Cas. Co., 19 Fla. L. Weekly Supp. 380, 380 (Fla. 11th Cir.Ct. Jan. 18, 2012) (parallel citation omitted). Additionally, at least one district court of appeal has cited the EUO language in Custer as authority for denying a petition for writ of certiorari. See United Auto. Ins. Co. v. Two & Two LLC, 82 So.3d 1052 (Fla. 4th DCA 2011). As one court put it, “[r]egardless of whether the Florida Supreme Court’s discussion of EUOs in the Custer case is viewed as the holding, an alternative holding, or simply dicta, ... the reasoning [is] persuasive[.]” Mercury Ins. Co. of Fla. v. Dr. Eduardo Garrido, P.A., 18 Fla. L. Weekly Supp. 575, 577 n. 3 (Fla. 11th Cir.Ct. Apr. 7, 2011). More than just persuasive, Custer is correct under the terms of the PIP statute, its underlying purpose of swift and virtually automatic payment to the insured, and relevant caselaw.

1. The PIP Statute

Section 627.786, Florida Statutes (2008), is silent regarding EUOs — it does not authorize their use, much less denial of benefits for failure to attend one. As summarized by the Eleventh Circuit in this case:

Geico points out [that] EUOs are consistent with many provisions in the No-Fault Statute. Section 627.736(4) states that benefits from an insurer are “due and payable as loss accrues, upon receipt of reasonable proof of such loss....” FLA. STAT. § 627.736(4) (emphasis added); see Amador v. United Auto. Ins. Co., 748 So.2d 307, 308 (Fla.Dist.Ct.App.1999) (acknowledging that “reasonable proof’ could include the requirement that an insured submit to an EUO). Subsection (4)(h) of the statute provides that benefits are not due under the statute if there is evidence of fraud “admitted to in a sworn statement by the insured.” FLA. STAT. § 627.736(4)(h). Additionally, Section 627.414(3) expressly authorizes insurers to include any “additional provisions not inconsistent with this code and which are ... [d]esired by the insurer and neither prohibited by law nor in conflict with any provisions required to be included therein.” FLA. STAT. § 627.414(3).

Nunez, 685 F.3d at 1209. But consistency with certain provisions in the statute is not the test. Rather, as recognized by the Eleventh Circuit, “[conditions not expressly addressed in a statute governing insurance coverage are subject to a two part test: (1) ‘whether the condition or exclusion unambiguously excludes or limits coverage!;]’ and (2) ‘whether enforcement of a specific provision would be contrary to the purpose of the ... statute.’ ” Id. (quoting Flores v. Allstate Ins. Co., 819 So.2d 740, 745 (Fla.2002)). The parties do not contest the first part of the Flores test, but rather focus on the second part regarding the purpose of the PIP statute.

The dissent asserts that by our adherence to what was said in Custer and Flores, in this case, we are abrogating unambiguous provisions found in section 627.414(3), Florida Statutes (2008). The dissent notes, “[Those opinions] do not so much as acknowledge the existence of section 627.414(3).” Dissenting op. at 399. We respectfully disagree with the dissent’s assessment of any abrogation by this opinion. We point out that while Custer and Flores do not address section 627.414(3), those opinions indeed address the conspicuous absence of statutory authority, under the PIP statute, for an insurer to enforce EUO provisions as a condition precedent to its payment of benefits to an insured. Accordingly, we reject the dissent’s view that the EUO provision employed by Geico in its PIP policy may be applied pursuant to section 627.414(3). Instead, PIP policy provisions should be promulgated by insurers in a manner that is consistent with the statutory goal under section 627.736 of ensuring “swift and virtually automatic payment” of benefits to insureds under the PIP statute. Majority op. at 397-98.

2. Purpose of the PIP Statute: Swift and Virtually Automatic Payment

“Without a doubt, the purpose of the no-fault statutory scheme is to ‘provide swift and virtually automatic payment -’ ” Ivey v. Allstate Ins. Co., 774 So.2d 679, 683-84 (Fla.2000) (quoting Gov’t Employees Ins. Co. v. Gonzalez, 512 So.2d 269, 271 (Fla. 3d DCA 1987)). Elaborating, this Court has recognized that

[t]he PIP statute is unique, in that it abolished “a traditional common-law right by limiting the recovery available to car accident victims” and in exchange, required PIP insurance that was recoverable without regard to fault. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1077 (Fla.2006). Although recovery is restricted under this statutory scheme, this Court has held that the PIP statute is a reasonable alternative to common law tort principles in that it provides “swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.” Id. (quoting Ivey v. Allstate Ins. Co., 774 So.2d 679, 683-84 (Fla.2000)).

Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328, 332 (Fla.2007). “This last observation is significant because any impediment to the right of the insured to recover in a ‘swift and virtually automatic’ way has the potential for interfering with the PIP scheme’s goal of being a reasonable alternative to common law tort principles.” Menendez v. Progressive Express Ins. Co., 35 So.3d 873, 877 (Fla.2010).

For this reason, Geico misses the mark in asserting that “EUOs are consistent with the purposes of the PIP statute,” which it identifies as “prevention of fraud” and “investigation and payment of claims.” The dissent asserts that “in this case we are not presented with the issue of whether Geico applied the EUO provision in an unreasonable manner.” Dissenting op. at 399. With all due respect to our colleague, in this case we are obliged to address whether Geico unreasonably exercised authority to require a condition precedent, where no such authority existed at the time under section 627.736. The dissent rationalizes that “[t]he EUO provision of the policy is simply designed to ensure that the ‘swift and virtually automatic’ payment of benefits, is made only to those who are entitled to those benefits under the law.” Dissenting op. at 400. Ironically, it has been more than four years since Nunez filed her claim for PIP benefits, to no avail for her. We conclude that Geico’s policy provision requiring Nunez and other insureds who sought PIP benefits prior to January 1, 2013, to be subjected to an EUO as a condition precedent was unreasonable and unnecessary under Florida law. See Custer, 62 So.3d at 1091; Flores, 819 So.2d at 745; § 627.736, Fla. Stat. (2008).

In order to bolster its argument, Geico offers United Automobile Insurance Co. v. Stat Technologies, Inc., 787 So.2d 920, 922 (Fla. 3d DCA 2001), for the proposition that “the policy to ensure swift payment must be balanced against the policy to prevent improper claims.” But that balance was stated by the district court in that case in terms of being “obviously contemplated by the legislators in providing insurers with a 30 day investigatory period.” Id. (applying that balance to hold that “interest on overdue PIP payments does not commence until the loss accrues, which is 30 days after the insurance company receives notice of a fact of covered loss”). While the district court in Stat Technologies implicitly recognized EUOs as an appropriate investigatory tool for insurance companies, it in no way indicated that they could properly delay or deny PIP benefits based on an insured’s failure to comply with a contractual EUO condition.

Such delay and denial based on the EUO condition in the present case has certainly kept Nunez from recovering in a “swift and virtually automatic” way — approximately four years have passed since she filed her claim, and she has still not received PIP benefits. Accord, e.g., Marlin Diagnostics v. State Farm Mut. Auto. Ins. Co., 897 So.2d 469, 469-71 (Fla. 3d DCA 2004) (over two years between filing of claim and appellate court ruling that obligation to attend an EUO does not shift to the provider merely because the insured assigned her benefits); Garrido, 18 Fla. L. Weekly Supp. at 575-77 (over five years between date of accident and circuit court in appellate capacity ultimately ruling in favor of the insured where insurer denied PIP benefits for failing to cooperate at an EUO; case illustrating a “prime example” of an insurer’s abuse of EUOs); United Auto. Ins. Co. v. Diaz, 18 Fla. L. Weekly Supp. 348, 348-51 (Fla. 11th Cir.Ct. Feb. 3, 2011) (approximately six years between date of accident and circuit court in appellate capacity ultimately ruling in favor of the insured where insurance company denied PIP benefits for failure to attend an EUO). While the exact dates are not reflected on the face of the opinion in Arias v. Affirmative Insurance Co., 944 So.2d 1195, 1195-97 (Fla. 4th DCA 2006), it is self-evident that months, if not years, passed while the parties in that case litigated through the trial and appellate courts about whether the insured was obligated to attend an EUO in order to obtain PIP benefits under the terms of the subject insurance policy.

We therefore reject Geieo’s assertion that “EUOs do not interfere with the PIP statute’s objective of requiring swift payment of benefits.” As the present case and the above examples amply illustrate, enforcing EUO conditions clearly can and do cause delay and denial of benefits in contravention of the purpose of the PIP statute. See, e.g., Cruz v. State Farm Mut. Auto. Ins. Co., 466 Mich. 588, 648 N.W.2d 591, 598 (2002) (holding under similar Michigan law that “a no-fault policy that would allow the insurer to avoid its obligation to make prompt payment upon the mere failure to comply with an EUO would run afoul of the statute and accordingly be invalid”).

“As a creature of statute rather than a matter for contemplation of the parties in creating insurance policies, the uninsured motorist protection is not susceptible to the attempts of the insurer to limit or negate that protection.” Flores, 819 So.2d at 745 (emphasis deleted) (quoting Salas v. Liberty Mut. Fire Ins. Co., 272 So.2d 1, 5 (Fla.1972)). The same is true for PIP protection. See Flores, 819 So.2d at 744-45 (recognizing that PIP insurance is likewise statutorily required); Vasques v. Mercury Cas. Co., 947 So.2d 1265, 1269 (Fla. 5th DCA 2007) (applying this aspect of Flores in the PIP context). Accordingly, enforcement of EUO conditions to delay or deny benefits negates statutory PIP protection and is invalid. See Vasques, 947 So.2d at 1269 (“[Exclusions that are inconsistent with the purpose of the [PIP] statute are invalid.”). This is especially true considering that “Florida’s no-fault laws are construed liberally in favor of the insured.” Fla. Med. & Injury Ctr., Inc. v. Progressive Express Ins. Co., 29 So.3d 329, 341 (Fla. 5th DCA 2010).

3. Caselaw

This Court in Flores recognized that, because PIP is a statutorily mandated coverage, “analogies to cases interpreting coverages that are not statutorily mandated, such as provisions in fire, life, and property insurance policies, may not necessarily be illuminating in guiding our analysis.” 819 So.2d at 745. As in the Eleventh Circuit, “[m]any of the cases cited by Geico in its brief, while in general support an insurer’s right to require EUOs before payment, do not directly address the EUO problem at issue because they do not involve statutorily required coverage.” Nunez, 685 F.3d at 1209. Specifically,

Geico points to Florida Supreme Court and intermediate appellate court decisions that affirm the right of insurers to require an EUO in connection with its investigation of a claim for PIP benefits. While there is a long history of Florida courts generally affirming the right of an insured to require EUOs prior to payment of benefits, these cases deal with insurance contracts not based on statute. See S. Home Ins. Co. v. Putnal, 57 Fla. 199, 49 So. 922, 932 (1909) (affirming that insured’s refusal to comply with fire insuz*ance policy condition that insured submit to an examination under oath precluded recovery); Edwards v. State Farm Fla. Ins. Co., 64 So.3d 730, 732 (Fla.Dist.Ct.App.2011) (affirming summary judgment for insurer on ground that insured failed to comply with pre-suit requirement of submitting to EUO in property insurance contract); Gonzalez v. State Farm Fla. Ins. Co., 65 So.3d 608, 609 (Fla.Dist.Ct.App.2011) (same); Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 303 (Fla.Dist.Ct.App.1995) (affirming that “an insured’s refusal to comply with a demand for an examination under oath is a willful and material breach of [a homeowner’s] insurance contract which precludes the insured from recovery under the policy”).

Nunez, 685 F.3d at 1209-10. Much the same is true in Geico’s brief in this Court, where it relatedly asserts that “Florida courts have recognized the validity of EUOs in the specific context of PIP benefits.” But most of those cases simply presumed the validity of EUO’s without addressing the issue at hand. As explained by the Eleventh Circuit,

[t]he only case that discusses the right of an insurer to require the insured to submit to an EUO in the statutory context as a condition precedent to coverage is Shaw v. State Farm Fire & Cas. Co., 37 So.3d 329 (Fla.Dist.Ct.App.2010) (en banc), decided six months before Custer. In Shaw, the issue before the court was whether an EUO clause in an automobile insurance policy was binding on an assignee of the right to payment of no-fault benefits, and the court held that an assignee medical provider is not required to submit to an EUO. Id. at 335. Before reaching that conclusion, the court stated that “[i]t is undisputed that a provision in an insurance policy that requires the insured to submit to an EUO qualifies as a condition precedent to recovery of policy benefits.” Id. at 331. Because the decision was not unanimous and the court thought the issue had a wide-ranging impact, the court certified the following question to the Florida Supreme Court: “Whether a health care provider who accepts an assignment of no-fault insurance proceeds in payment of services provided to an insured can be required by a provision in the policy to submit to an examination under oath as a condition to the right of payment?” Id. at 335. That question has not yet been answered by the Florida Supreme Court.
The court in Shaw clearly stated that an EUO is a condition precedent to recovery of benefits if the insurance policy requires the insured to submit to an EUO. Id. at 331. However, the court did not distinguish the statutory coverage at issue in that case from other types of insurance like the Florida Supreme Court did in dicta in Custer. Indeed, the court in Shaw cited the same cases Geico relies on here to support the position that EUOs are valid conditions precedent under Florida law, none of which directly apply to statutorily-imposed coverage.

Nunez, 685 F.3d at 1210. The Eleventh Circuit thus concluded that, “[biased on the dicta in Custer, it could be that the Florida Supreme Court may not follow the appellate court’s statement in Shaw.” Id. The Eleventh Circuit’s speculation is correct. Based on the analysis above, we hold in alignment with Custer that EUO conditions are invalid as contrary to the terms of section 627.736, Florida Statutes (2008). We disapprove Shaw to the extent it holds otherwise.

B. 2012 Amendment of the PIP Statute

In an apparent response to Custer, the Legislature amended the PIP statute in 2012 to include the requirement that insureds seeking benefits under the Florida Motor Vehicle No-Fault Law “comply with the terms of the policy, which include, but are not limited to, submitting to an examination under oath.” Ch. 12-197, § 10, at 2752, Laws of Fla. (now codified in § 627.736(6)(g), Fla. Stat. (2012), effective January 1, 2013). Because Nunez’s policy with Geico was issued in 2008, her accident was in 2008, and she filed her class action complaint in 2009, this amendment does not directly apply to the present case, and Geico does not contend otherwise. Rather, Geico argues that “[w]here, as here, a statutory amendment is enacted ‘soon after controversies as to the interpretation of the original act arise,’ the amendment may be viewed as a ‘legislative interpretation of the original law and not as a substantive change thereof.’ ” (quoting Lowry v. Parole & Probation Comm’n, 473 So.2d 1248, 1250 (Fla.1985)).

But, while several of the cases cited by Geico in this context involve subsequent amendments to statutorily created insurance laws, those amendments generally favored the insured, not the insurer. See Ivey v. Chicago Ins. Co., 410 So.2d 494, 497 (Fla.1982) (finding subsequent amendment to the uninsured motorist statute to be a clarification of Legislature’s intent to allow insured “to stack the uninsured motorist coverage of policies of which she is a beneficiary when determining whether another party is an uninsured motorist”); Vasques v. Mercury Cas. Co., 947 So.2d 1265, 1270 (Fla. 5th DCA 2007) (finding that the PIP statute validated its holding that “[t]o allow insurers to deny coverage of PIP benefits where someone other than the claimant makes a false statement for the purpose of defeating coverage would violate the well-articulated public policy considerations giving rise to personal injury protection benefits in this state”); but see Millennium Diagnostic Imaging Ctr., Inc. v. Sec. Nat’l Ins. Co., 882 So.2d 1027, 1029-30 (Fla. 3d DCA 2004) (affirming dismissal of insured’s complaint that the higher “limiting charge” PIP fee schedule applied, finding that subsequent amendment to PIP statute “shows that the purpose of the amendment was to clarify that the [lower] [^participating fee[’] schedule was the proper fee schedule under the original statute”).

Of these cases, Vasques (which this Court cited in Custer) is most on point insofar as, like the present case, it involves the denial of a PIP claim. The district court in that case held:

We ... exercise our narrow authority to issue a writ of certiorari in this case because the circuit court’s decision im-permissibly disregards Florida’s public policy as expressed in the PIP statute. PIP insurance is a statutorily required coverage to comply with Florida’s no-fault law and is an integral part of the no-fault statutory scheme. The purpose of the PIP statute is to provide for speedy payment of medical bills and compensation for lost income for accident victims. Given its purpose, both this court and the Florida supreme court have held the provisions of Florida’s No-Fault Act must be construed liberally in favor of the insured.
The PIP statute in effect at the time of Vasques’ injury did not expressly permit an exclusion for fraud, but there was no blanket prohibition against the inclusion of general conditions affecting coverage or even exclusions, so long as the limitation was consistent with the purposes of the statute. However, restrictions on statutorily mandated coverage must be carefully examined because exclusions that are inconsistent with the purpose of the statute are invalid. In light of the overarching purposes behind the statute’s protection, conditions or exclusions must be carefully scrutinized to determine, first, whether the condition or exclusion unambiguously excludes or limits coverage, and then, second, to determine whether enforcement of a specific provision would be contrary to the purpose of the no-fault statute. Furthermore, because PIP is a statutorily mandated coverage, analogies to cases interpreting coverages that are not statutorily mandated, such as provisions in fire, life, and property insurance policies, may not necessarily be illuminating.
Manifestly, a policy provision that is interpreted to eliminate personal injury protection benefits for an innocent third-party claimant based on misstatements made by the policyholder to the insurer would be inconsistent with the statutory scheme. Florida has gone to extreme lengths to assure that personal injury protection benefits follow every licensed vehicle and cover any injured person. It makes no sense that this mandated coverage for an injured person could evaporate simply because someone else designated an “insured” under the policy— even though a stranger to the claim— lied.

Vasques, 947 So.2d at 1269 (citations omitted). It likewise makes no sense that mandated PIP coverage could evaporate simply because, as in the present case, the insured failed to attend an EUO that was neither required under the then-applicable statute nor authorized thereunder as a basis for denial of benefits.

We therefore find that the 2012 amendment at issue amounts to a substantive change, not just a legislative clarification, of the PIP statute, especially considering the careful examination that applies in this context and our responsibility to construe the provisions of Florida’s No-Fault Act liberally in favor of the insured. Id. We accordingly hold that the 2012 amendment does not inform or control our disposition of the present case. We do not otherwise comment on the applicability or validity of the 2012 amendment.

III. CONCLUSION

In sum, we hold in alignment with Custer that EUO conditions are invalid as contrary to the terms of section 627.736, Florida Statutes (2008). We disapprove Shaw to the extent it holds otherwise. We also hold that the 2012 amendment at issue substantively changed, not just legislatively clarified, section 627.736, and that the amendment therefore does not inform or control our disposition of the present case. We accordingly answer the certified question in the negative and return this case to the Eleventh Circuit Court of Appeals. We also provisionally grant Nunez’s motion for appellate attorney’s fees and remand that motion to the Eleventh Circuit to determine the amount, conditioned on the party prevailing pursuant to applicable statutes, rules, and caselaw.

It is so ordered.

PARIENTE, LEWIS, QUINCE, and LABARGA, JJ., concur.

POLSTON, C.J., dissents.

CANADY, J., dissents with an opinion, in which POLSTON, C.J., concurs.

CANADY, J.,

dissenting.

Because I conclude that Geico was authorized by Florida law to include the policy provision regarding examinations under oath, I dissent.

Geico’s authority to include this policy provision flows directly from section 627.414, Florida Statutes (2008), concerning “[a]dditional policy contents,” which states that a “policy may contain additional provisions not inconsistent with this code and which are ... (3) [djesired by the insurer and neither prohibited by law nor in conflict with any provisions required to be included therein.” (Emphasis added.) Neither the majority nor the appellant have articulated any reason for concluding that this broadly applicable statutory provision has no force with respect to personal injury protection (PIP) policies. And neither the majority nor the appellant have provided any explanation of why Geico’s examination under oath (EUO) policy provision goes beyond what is permitted by the statutory provision.

The majority’s only consideration of section 627.414(3) comes in connection with the recitation of a portion of the opinion of the Eleventh Circuit Court of Appeals that quotes the text of the statute. Having set forth the text of section 627.414(3) and recognizing the requirement of “consistency” that it embodies, the majority brushes the statute aside. According to the majority, “consistency with certain provisions in the [PIP] statute is not the test.” Majority op. at 393. The majority thus effectively abrogates the unambiguous statutory enactment contained in section 627.414(3). Rather than applying this statute, the majority relies largely on what the Court has previously said in Custer Medical Center v. United Automobile Insurance Co., 62 So.3d 1086 (Fla.2010), and Flores v. Allstate Insurance Co., 819 So.2d 740 (Fla.2002). Of course, neither case contains any holding that governs the result here. And with respect to any comments they contain relevant to the question at issue here, both Custer and Flores suffer from the glaring deficiency that they do not so much as acknowledge the existence of section 627.414(3), much less provide any analysis of its application to PIP policies.

When the EUO provision is evaluated under the authorization contained in section 627.414(3), no basis can be found for determining that the EUO provision is inconsistent with the insurance code, prohibited by any provision of law, or in conflict with any provisions required to be included in the policy by the PIP statute. Accordingly, the EUO provision constitutes additional policy content that falls within the scope of section 627.414(3).

The majority makes much of the potential for unreasonable application of an EUO policy provision, but in this case we are not presented with the issue of whether Geico applied the EUO provision in an unreasonable manner. The issue, rather, is the purely legal question of whether the EUO provision in the PIP policy is invalid on its face. The fact that a policy provision might be abused by an insurer seeking to apply it unreasonably is not a proper basis for declaring the policy provision invalid on its face.

With respect to the issue of the timely payment of benefits, there is nothing on the face of the EUO provision that is inconsistent with the requirements of the PIP statute regarding the time for the payment of benefits. Nothing in the EUO provision indicates that the rights of the insurer cannot be implemented within the time constraints imposed by the PIP statute. An insurer that fails to do so will face the legal consequences of that failure. Moreover, an insured whose receipt of benefits is delayed because of her refusal to comply with a reasonable request for an EUO should not be heard to complain that the right to recover PIP benefits in a “swift and virtually automatic” way has been thwarted. Majority op. at 392. The right to a “swift and virtually automatic” recovery of benefits is a right properly enjoyed by those who in fact meet the legal requirements for the receipt of benefits and comply with the legal obligations of an insured. The EUO provision of the policy is simply designed to ensure that the “swift and virtually automatic” payment of benefits is made only to those who áre entitled to those benefits under the law.

I would rephrase the certified question as follows: “Does Florida law permit an insurer to include in a PIP policy a provision requiring that those seeking coverage under the policy submit to examination under oath as reasonably required by the insurer?” And I would answer this question in the affirmative.

POLSTON, C.J., concurs.

      . An examination under oath is “an investigative tool whereby an insurer may request that a claimant pursuing a claim under a policy appear at a specified location to give a statement under oath. The examination is usually conducted by an insurance adjuster or defense attorney who interrogates the claimant about the claim or other factors that may bear on coverage. The statement is almost always transcribed by a court reporter and is often tape recorded.” Russel Lazega, Florida Motor Vehicle No-Fault Law: Personal Injury Protection (PIP) § 7:15 (2011-12 ed.).

      . Geico attempts to distinguish Custer based on the "without counsel” language referenced therein. But, as Nunez correctly counters, "Geico’s argument that Custer is somehow limited to EUO's outside the presence of counsel is not supported by this Court’s analysis in Custer or by the case-law cited therein supporting same. Moreover, such a reading is illogical since the P.I.P. statute did not contain any EUO condition, whether with or without the presence of counsel. Nowhere does the opinion focus on the presence of counsel as more than a mere fact therein or infer a different result otherwise."

      . We note that if Geico had particular concerns about fraud or improper claims by Nunez in the present case, it could have pursued court-ordered discovery under section 627.736(6)(c), Florida Statutes (2008) (providing that such an order "may be made only on motion for good cause” and that the "court may, in order to protect against annoyance, embarrassment, or oppression, as justice requires, enter an order refusing discovery or specifying conditions of discovery and may order payments of costs and expenses of the proceeding”).

      4. Review of Shaw was not sought in this Court.


source: Caselaw Access Project

author: PARIENTE, J. CANADY, J.,

license: Public Domain

text:
    Jose Lazaro RODRIGUEZ, Petitioner, v. MIAMI-DADE COUNTY, Florida, Respondent.
    No. SC11-1913.
    Supreme Court of Florida.
    June 27, 2013.

      Barbara A. Silverman, Curtis B. Miner, and Ervin A. Gonzalez of Colson Hicks Eidson, Coral Gables, FL, for Petitioner.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Erica S. Zaron and Albert D. Liehy, Assistant County Attorneys, Miami, FL, for Respondent.
    Pamela Jo Bondi, Attorney General, and Louis F. Hubener, Chief Deputy Solicitor General and Diane G. DeWolf, Deputy Solicitor General, Tallahassee, FL, for Ami-cus Curiae State of Florida.
    Thomas W. Poulton of DeBevoise & Poulton, P.A., Winter Park, FL, for Ami-cus Curiae the Florida Sheriffs Association, the Florida Association of Police Attorneys, the Miami-Dade County Association of Chiefs of Police, the Florida Police Chiefs Association, the Florida League of Cities, Inc., and the Florida Association of County Attorneys, Inc.
   PARIENTE, J.

In this case, the Court once again addresses the proper use of the writ of cer-tiorari when a governmental entity raises sovereign immunity as a basis for a motion for summary judgment, which the trial court denied. See Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So.3d 344 (Fla.2012); Keck v. Eminisor, 104 So.3d 359 (Fla.2012). In the case before the Court, Miami-Dade County v. Rodriguez, 67 So.3d 1213, 1219 (Fla. 3d DCA 2011), Jose Lazaro Rodriguez, a business owner, filed suit against Miami-Dade County, alleging that he was negligently shot by a police officer responding to a burglary alarm at his place of business. Concluding that review by certiorari was appropriate and that the County was entitled to sovereign immunity as a matter of law, the Third District Court of Appeal certified that its decision was in direct conflict with the decisions of the Fifth District Court of Appeal in Florida A & M University Board of Trustees v. Thomas, 19 So.3d 445, 446 (Fla. 5th DCA 2009), and of the Second District Court of Appeal in Pinellas Suncoast Transit Authority v. Wrye, 750 So.2d 30, 30 (Fla. 2d DCA 1996), as to the scope of certiorari review. Rodriguez, 67 So.3d at 1223.

For the reasons that follow and in keeping with our recent precedent in Citizens and Keck, we hold that Miami-Dade County’s claim that it is entitled to sovereign immunity is not renewable by the appellate courts through a petition for writ of certiorari because there is no irreparable harm and because there are essential facts in dispute. We further hold that the Third District erred in concluding that a “police emergency exception” conferred planning-level sovereign immunity on the County in this case. Accordingly, we quash the Third District’s decision.

FACTS

This case stems from an unfortunate factual scenario, where police officers and the business owner, Jose Lazaro Rodriguez, both responded to a burglary alarm at Rodriguez’s business, and during this incident, Rodriguez was shot by one of the responding police officers. A video camera at the business recorded part of the incident but did not show the circumstances of the actual shooting because the police officer and Rodriguez were out of the view of the camera at that precise time.

Rodriguez filed a complaint against Miami-Dade County for negligence based on the wrongful shooting and for negligent retention and supervision of Officer Hernandez, one of the responding officers. Officer Hernandez was not sued individually. In his complaint, Rodriguez asserted that after his alarm service informed him of the burglary, he drove to the business with his lawfully owned firearm. He alleged that after exiting his vehicle, he was shot from behind four times by Officer Hernandez, who failed to provide any prior warning before firing his gun.

After the County obtained a recording from security cameras that had captured the events surrounding the shooting, the County filed a motion for summary judgment, asserting that the video footage definitively established that Officer Hernandez was not negligent because it showed that before he fired his gun, Rodriguez pointed a firearm toward him. In addition to other defenses, the County argued that it had immunity because Officer Hernandez acted in self-defense and that it was entitled to sovereign immunity because the officer’s actions were discretionary and fell under the police emergency exception.

Rodriguez opposed the motion for summary judgment, asserting that the video footage was inconclusive as to several key points and demonstrated that Officer Hernandez responded recklessly to the scene of the burglary alarm, violated basic safety procedures, and negligently created the situation where he shot an innocent civilian. Rodriguez contended that there was no emergency situation that required the officer to shoot anybody, until the officer himself recklessly created a dangerous situation by charging on the scene without providing any warning.

In support, Rodriguez relied on the affidavit of Michael Manning, a retired lieutenant from the City of Miami Police Department, who discussed numerous errors that he believed the responding officers committed, including his assertion that Officer Hernandez improperly rushed into the situation, separated from his partner, and placed himself in a dangerous position where he might need to use deadly force. Rodriguez also filed an affidavit to oppose the motion for summary judgment, in which he contested the facts. The affidavit stated that when Rodriguez drove to the store in response to the burglary alarm, he did not see any police. However, he did notice a person crawling into the store through a hole in the glass of the front door to his store. Rodriguez asserted that he had his gun in his hand and had planned to detain the robber from a distance until the police arrived. Rodriguez stated that after he exited his truck, he was shot in the left buttock from behind and the impact spun him around clockwise so that he was rotated in the direction of the shooter. He never heard anybody shout “Police” or “Freeze!”

At a hearing on the motion for summary judgment, the trial court indicated that it was troubled because the video did not “tell the entire story,” especially since the shooting itself was not visible on the video. Further, the trial court questioned whether it could determine as a matter of law that the officer was responding to an emergency, as the County asserted. The trial court denied the County’s motion as to Count I (the negligence claim) and granted the County’s motion as to Count II (the negligent retention claim).

The County filed a petition for writ of certiorari with the Third District, which the Third District granted. The district court recognized that generally it would not use its certiorari jurisdiction “to review orders either denying motions to dismiss or denying motions for summary judgment where the sovereign argues that it is not hable as alleged because no duty can be demonstrated” in a negligence action. Rodriguez, 67 So.3d at 1216. However, the Third District distinguished that type of case from those involving sovereign immunity, which traditionally prevented a sovereign from being sued in its own courts until the Legislature waived its sovereign immunity for torts. Id. at 1216-17. The Third District reviewed this Court’s decision in Wallace v. Dean, 3 So.3d 1035, 1044-45 (Fla.2009), and concluded that “in those cases in which the conduct and function at issue clearly do not fall within the tort liability waiver, we believe that we should exercise our jurisdiction to preclude prosecution of an action where the sovereign remains immune from suit.” Rodriguez, 67 So.3d at 1219.

Finally, in its opinion, the Third District recognized that determining the applicability of sovereign immunity is often “inextricably tied to the underlying facts.” Id. (quoting Dep’t of Educ. v. Roe, 679 So.2d 756, 758 (Fla.1996)). Nevertheless, the Third District characterized this case as “predicated on the doctrine of separation of powers” that it considered “distinct from immunity resting on the sovereign character of the state or municipality in the performance of its governmental functions.” Id. at 1221. The Third District invoked the “emergency exception” as a basis for essentially determining that the question in the case was a “nonjusticiable political question that is more appropriately committed to the resolution of a coordinate or constituent branch of government.” Id, at 1218 (quoting Wallace, 3 So.3d at 1053-54).

In invoking the police emergency exception, the Third District stated that this Court had “created a clear exception for police action in emergency situations.” Id. at 1221 (citing City of Pinellas Park v. Brown, 604 So.2d 1222, 1226-27 (Fla.1992) (citing Kaisner v. Kolb, 543 So.2d 732, 738 n. 3 (Fla.1989))). The Third District determined that the undisputed facts showed that “(a) a serious emergency existed, (b) the emergency was thrust upon the police by the acts of others, and (c) [the officers] were required to make split-second choices that could result in harm either way.” Id.

ANALYSIS

The certified conflict issue in this case is whether the Third District erred in holding that it had certiorari jurisdiction to review a non-final order denying the County’s motion for summary judgment. However, because the Third District relied on the “emergency exception” as a basis for concluding that the County was immune from suit as a matter of law, we also must review the application of that doctrine to the facts of this case.

Certiorari Review

Subsequent to the Third District’s decision in Rodriguez, we recently clarified the extremely narrow scope of a district court’s ability to use its certiorari jurisdiction to address a non-final order where the trial court denied the defendant’s claim that the suit was barred by sovereign immunity. Accordingly, we first review this Court’s decisions in Citizens Property Insurance Corp. v. San Perdido Ass’n, 104 So.3d 344 (Fla.2012), and Keck v. Eminisor, 104 So.3d 359 (Fla.2012). With those principles in place, we then turn to whether the Third District properly used a writ of certiorari under the circumstances presented in this case.

Generally, parties must wait until after a final order is issued before seeking appellate review. As we explained in Citizens Property Insurance, “[v]ery few categories of non-final orders qualify for the use of th[e] extraordinary writ” of common law certiorari. Citizens Prop. Ins. Corp., 104 So.3d at 351-52. In order to be entitled to certiorari relief from the denial of a motion for summary judgment, the petitioner must establish three elements: (1) the ruling “depart[s] from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on post-judgment appeal.” Williams v. Oken, 62 So.3d 1129, 1132 (Fla.2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004)). The threshold question that must be reached first is whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm. See id. Only after irreparable harm has been established can an appellate court then review whether the petitioner has also shown a departure from the essential requirements of law. Id. at 1132-33.

In Citizens Property Insurance, this Court analyzed whether an appellate court could use certiorari jurisdiction to address a non-final order where the trial court denied the defendant’s claim that the suit was barred by sovereign immunity. This Court agreed with the First District, in which the First District held that Citizens Property Insurance was not entitled to certiorari review of a non-final order because it did not suffer from irreparable harm “in requiring that appellate consideration of the sovereign immunity claim await the entry of a final judgment.” Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 46 So.3d 1051, 1053 (Fla. 1st DCA 2010). As we stressed in Citizens Property Insurance, “equating the defense of a lawsuit with the type of irreparable harm necessary for the threshold decision to invoke certiorari has the potential to eviscerate any limitations on the use of this common law writ, which has always been narrowly applied.” Citizens Prop. Ins. Corp., 104 So.3d at 356.

On the same day that we issued our decision in Citizens Property Insurance, we also issued our decision in Keck v. Eminisor, 104 So.3d 359, a related case involving sovereign immunity and certiora-ri review. In that case, the defendant asserted that, pursuant to section 768.28(9)(a), Florida Statutes (2005), he was entitled to sovereign immunity for actions taken within the scope of his employment as an employee of a corporation acting primarily as an instrumentality of a State agency. Keck, 104 So.3d at 361. The First District declined to exercise its certiorari jurisdiction, but presented a certified question to this Court as to whether Keck was entitled to interlocutory review. Id. On review, this Court held that, based on important policy reasons similar to those present in the case of Tucker v. Resha, 648 So.2d 1187, 1189-90 (Fla.1994), Keck was entitled to interlocutory review of an order denying summary judgment based on a claim of individual immunity under section 768.28(9)(a), where the issue turned on a question of law. Keck, 104 So.3d at 366.

In Keck, we emphasized that the applicable statute, section 768.28(9)(a), specifically entitled a governmental employee not to “be named as a party defendant” for acts within the scope of his or her employment. Id. The Court reasoned that “if a defendant who is entitled to the immunity granted in section 768.28(9)(a) is erroneously named as a party defendant and is required to stand trial, that individual has effectively lost the right bestowed by statute to be protected from even being named as a defendant.” Id. Despite recognizing that statutory immunity, we did not utilize the common law writ of certiorari, but as in Tucker, we requested the Florida Bar Appellate Court Rules Committee to submit a proposed narrow amendment to Florida Rule of Appellate Procedure 9.130. Id. Noting the inconsistent use of certiora-ri to review claims of sovereign immunity, a majority of the Court requested that the Committee “undertake a comprehensive review of whether the categories of non-final orders in rule 9.130(a)(3) should be expanded to include the denial of any claim of immunity where the question presented is solely a question of law.” Id. at 370 (Pariente, J., concurring with an opinion, in which Lewis, Labarga, and Perry, JJ., joined).

Consistent with our recent holdings in Citizens and Keck, we reiterate that the continuation of litigation and any ensuing costs, time, and effort in defending such litigation does not constitute irreparable harm. Thus, the use of certiorari review is improper in such an instance. Moreover, in addition to irreparable harm that cannot be remedied on appeal, before granting certiorari relief, the district court must also find that the ruling at issue “depart[s] from the essential requirements of law resulting in a miscarriage of justice.” Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712, 725 (Fla.2012).

In this case, the Third District did not analyze whether the error it discussed amounted to a departure from the essential requirements of law. It is unclear whether the district court considered this prong, particularly in light of its statement that “[i]t is the imminent threat or existence of irreparable harm that gives us jurisdiction in this case.” Rodriguez, 67 So.3d at 1220 n. 4.

We again emphasize, consistent with our precedent, that an appellate court can grant a petition for writ of certiorari only where there is “(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.” Williams, 62 So.3d at 1132 (quoting Reeves, 889 So.2d at 822). The latter two elements, referred to as irreparable harm, are jurisdictional, but a court must also find that the decision below departed from the essential requirements of law before it can grant the writ. Id. Accordingly, the Third District erred in using its certiorari jurisdiction in order to reverse the trial court’s non-final order.

The Viability of a Police Emergency Exception in This Case

The Third District also erred when, relying on Kaisner and Pinellas Park, it applied the police emergency exception as a basis for invoking certiorari jurisdiction and declaring that Miami-Dade County was immune from suit as a result of the actions of its police officers in this case. For the reasons addressed below, we hold that the circumstances present in this case do not rise to the level of invoking the narrow emergency exception because this is not the kind of situation implicating police planning-level decisions. Further, we disapprove the Third District’s broad statement that this Court has “created a clear exception for police action in emergency situations,” Rodriguez, 67 So.3d at 1221, which would create immunity from suit as a matter of law whenever police respond to an emergency.

A review of Kaisner and Pinellas Park reveals that neither case utilized a writ of certiorari. In addition, neither of those cases concluded that the police emergency exception was applicable. In Kais-ner, the plaintiffs brought an action against two officers after the plaintiff was struck by another vehicle when the deputies stopped him for an expired inspection sticker. Kaisner, 543 So.2d at 733. The trial court granted summary judgment in favor of all of the defendants, and the Second District affirmed, concluding that the actions were discretionary and immune from suit. Id. This Court disagreed, noting that sovereign immunity shields only actions that are “discretionary,” not those that are “operational” in nature. Id. at 737. The Court explained that a discretionary act was one involving “an exercise of executive or legislative power such that, for the court to intervene by way of tort law, it inappropriately would entangle itself in fundamental questions of policy and planning,” while an operational act was one that is “not necessary to or inherent in policy or planning, that merely reflects a secondary decision as to how those policies or plans will be implemented.” Id. After reviewing those definitions and the four-part test in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1019 (Fla.1979), this Court determined that the manner in which an officer orders a motorist to the side of the road is not a policy-making or planning decision that is protected from tort liability. Kaisner, 543 So.2d at 737-38.

In a footnote, the Court emphasized that it would not necessarily reach the same decision if the issue involved “an emergency requiring swift action to prevent harm to others, albeit at the risk of harm to petitioners” because those types of decisions with a high level of urgency would be “entitled to great deference, and may in fact reach a level of such urgency as to be considered discretionary and not operational.” Id. at 738 n. 3 (emphasis added). While the statements in this footnote are dicta, they illustrate the extremely limited scope of a serious police emergency exception, where the actions of the police would constitute a planning decision immune from suit rather than an operational one scrutinized under the principles of negligence.

In the second case relied on by the Third District, Pinellas Park, 604 So.2d at 1224-25, the police raised the police emergency exception mentioned in Kaisner after twenty police vehicles engaged in a twenty-five mile long, high-speed chase through densely populated portions of Tampa in order to pursue a vehicle that ran a red light. This chase ultimately culminated in the death of three people. Id. The Court held that sovereign immunity did not apply because the action was clearly operational and could not be considered as either policy or planning, especially when the actions taken were actually contrary to adopted policies. Id. at 1226. The Court again stressed that “sovereign immunity does not shield acts that are ‘operational’ in nature but only those that are ‘discretionary.’” Id. As to this question, we reiterated that “an act is operational if it ‘is one not necessary to or inherent in policy or planning, that merely reflects a secondary decision as to how those policies or plans will be implemented.’ ” Id. (quoting Kaisner, 543 So.2d at 737).

Further, the Court rejected the argument that the conduct at issue fell within the police emergency exception because to fall within the exception, “the serious emergency must be one thrust upon the police by lawbreakers or other external forces, that requires them to choose between different risks posed to the public.” Id. at 1227. The Court stressed that under the police emergency exception, officers had “no option but to choose between two different evils. It is this choice between risks that is entitled to the protection of sovereign immunity in appropriate cases, because it involves what essentially is a discretionary act of executive deci sion-making.” Id. (emphasis added). However, the Court also stressed that “this does not mean that state agents can escape liability if they themselves have created or substantially contributed to the emergency through their own negligent acts or failure to adhere to reasonable standards of public safety.” Id.

Neither Pinellas Park nor Kaisner applied the police emergency exception as a basis for immunity. Thus, this Court has never had the occasion to determine under what circumstances, if any, the police emergency exception would constitute a planning-level decision under the Commercial Carrier test so as to render the responsible governmental entity immune from liability, as opposed to circumstances surrounding whether the responding police were negligent under the totality of the circumstances. Because we conclude that the circumstances of this case would not fall under the narrow exception outlined in Pinellas Park and Kaisner, we do not reach the viability of that doctrine here.

In this case, the motion for summary judgment was based on the County’s assertion that it was immune from suit as a matter of law because the officers were responding to an emergency — a motion Rodriguez opposed by presenting evidence that the police failed to adhere to reasonable standards of public safety. Here, the trial judge, while recognizing that there was a recording of most of the facts surrounding the shooting, concluded that the video did not include all of the relevant chain of events and did not include any auditory track. Further, in this case, the affidavit of the expert retired police officer asserted that the responding officers committed a number of errors that created a dangerous situation. The trial court denied the summary judgment motion, stating that there were disputed issues of fact as to whether a serious emergency existed and whether the police response created or added to the danger.

We conclude that the trial court properly denied summary judgment. Although the County moved for summary judgment, disputed issues of fact remain, including whether the police created or substantially contributed to the shooting through negligent acts, as alleged by Rodriguez. In addition, the video upon which the County relies does not provide the entire story. Thus, we agree that the police emergency exception does not apply as a matter of law to immunize the County from suit in this case. Rather, the focus is on whether or not the police officers were negligent under all the circumstances, which would include the fact that the police officers were responding to a burglary, and whether they perceived that they were facing a serious threat that required immediate action through the use of deadly force. On the other hand, assuming the jury finds negligence, the actions of Rodriguez could be considered by the jury as comparative negligence in contributing to causing, or being the cause of, his own injuries.

There is no question that, by virtue of what police officers do every day, they are often exposed to dangerous situations, especially when responding to calls involving crimes in progress. But it is quite another thing to say that when the police respond to those situations, their employer is always immune from suit arising from negligent acts. If police agencies were immune from tort suits in all situations where the police are called to respond to an ongoing crime, the police emergency exception could eviscerate the waiver of sovereign immunity for negligent conduct.

CONCLUSION

Because the County has failed to show the necessary prongs for certiorari, we hold that a writ of certiorari is not available to review the merits of the County’s claim of sovereign immunity. We further hold that the Third District erred in concluding that the County was entitled to summary judgment based on the narrow police emergency exception. We thus quash the Third District’s decision below and remand for proceedings consistent with this opinion. We further approve the conflict cases, Florida A & M and Pinellas Suncoast Transit Authority, which both held that certiorari review was unavailable in such circumstances.

It is so ordered.

LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

CANADY, J., concurs in result only with an opinion, in which POLSTON, C.J., concurs.

CANADY, J.,

concurring in result only.

Although I agree that the decision on review should be quashed, I disagree with the analysis employed by the majority. I would quash the Third District’s decision simply because there was no basis for the Third District to determine that the circuit court’s denial of summary judgment constituted a departure from the essential requirements of law.

I am inclined to agree with the Third District’s analysis regarding the proper scope of the emergency exception from the waiver of sovereign immunity. But the issue on which this case properly turns is not whether the Third District correctly applied the emergency exception. Instead, the issue is whether the Third District could properly conclude that the circuit court departed from the essential requirements of law.

A determination that the circuit court departed from the essential requirements of law in failing to apply the emergency exception is unwarranted because the scope of the emergency exception remains ill-defined in the Florida case law. Although the emergency exception is mentioned in the majority opinion in Kaisner v. Kolb, 543 So.2d 732, 738 n. 3 (Fla.1989), and in the plurality opinion in City of Pinellas Park v. Brown, 604 So.2d 1222, 1227-28 (Fla.1992), neither of those cases contains any holding regarding the emergency exception. The Third District’s decision in Robles v. Metropolitan Dade County, 802 So.2d 453, 454 (Fla. 3d DCA 2001), does contain such a holding, but the factual context of that case — which involved the hijacking of a school bus in which the hijacker was “potentially armed with an explosive device” — is quite dissimilar from the factual context here. Given the state of the case law, the Third District had no basis for determining that the circuit court departed from the essential requirements of law. Such a determination is warranted “only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 96 (Fla.1983). There is no “clearly established principle of law” that would require application of the emergency exception to a factual situation like the one presented by this case. Id. Accordingly, the decision of the Third District should be quashed.

I disagree with the majority’s conclusion that legal immunity from suit is not a proper basis for determining that the jurisdictional requirements for certiorari are satisfied. Once it is legally established that the statutory waiver of sovereign immunity is inapplicable, the sovereignly immune entity is both immune from liability and immune from suit. At that point, the erroneous continuation of legal proceedings against the immune governmental entity constitutes irreparable harm because the full benefit of the legal immunity from suit cannot be restored on appeal. The Court has never offered any cogent explanation of why the violation of immunity from suit does not constitute irreparable harm. The Court’s attempt to provide an explanation in Citizens Property Insurance Corp. v. San Perdido Ass’n, 104 So.3d 344, 355 (Fla.2012), illogically rests on the assertion that if an immune party was allowed to “show irreparable harm simply through the continuation of defending a lawsuit, such harm would apply to a multitude of situations” such as the erroneous denials of motions to dismiss. The violation of immunity from suit is of an entirely different character from the run-of-the-mill erroneous denial of a motion to dismiss or of a defendant’s motion for summary judgment. The majority in effect equates “immune from suit” with “not liable.” This fundamentally degrades the meaning of immunity from suit.

POLSTON, C.J., concurs.

      . Based on this certified direct conflict, we have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

      . Rodriguez also initially claimed that the police delayed providing prompt medical attention, a claim that he later abandoned.

      .In fact, section 768.28(9)(a), Florida Statutes (2008), entitles an individual employed by a governmental entity to be immune from suit unless the employee has acted "in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.”

      . The four-part test of Commercial Carrier asks the following:

        (1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? If these preliminary questions can be clearly and unequivocally answered in the affirmative, then the challenged act, omission, or decision can, with a reasonable degree of assurance, be classified as a discretionary governmental process and nontortious, regardless of its unwisdom.

        Kaisner, 543 So.2d at 736 (quoting Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440, 445 (1965), and recognizing that this test was adopted in Commercial Carrier).

      . Both Florida A & M and Pinellas Suncoast Transit Authority denied jurisdiction based on the reasoning of Roe. Specifically, in Florida A & M, 19 So.3d at 446, the Fifth District stated in a short decision that it "lackfed] jurisdiction to review this interlocutory order,” citing Department of Education v. Roe, 679 So.2d 756 (Fla.1996), and School Board of Miami-Dade County v. Leyva, 975 So.2d 576 (Fla. 3d DCA 2008). Likewise, Pinellas Suncoast Transit Authority involved a very brief decision in which the Second District summarily stated that it "d[id] not have jurisdiction to review the denial of the motion to dismiss based on sovereign immunity either as a nonfinal appeal or as a certiorari proceeding.” Pinellas Suncoast Transit Auth., 750 So.2d at 30.


author: CONNER, J.

text:
    HSBC BANK USA, NATIONAL ASSOCIATION, as trustee for Deutsche Alt-A Securities, Inc., Mortgage Loan Trust, Mortgage Pass Through Certificates Series 2006-AR3, Appellant, v. Marie NIXON, Michael Nixon Cross Media Marketing Corporation, Inc., Javier Parraguire; John Doe and Jane Doe as tenants in possession of the subject property, and 3L Real Estate, LLC, Appellees.
    No. 4D11-3038.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 2012.
    Justin C. Leto of The Leto Law Firm, Miami, for appellant.
    Jonathan J. Alfonso of Wesoloski Carlson, P.A., Miami, and Dinah Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for appellee 3L Real Estate, LLC.
   ON MOTION FOR REHEARING

CONNER, J.

We grant 3L Real Estate’s motion for rehearing, withdraw our previous opinion, and substitute this opinion in its place.

HSBC Bank USA (“HSBC”) appeals the denial of its motion to vacate a foreclosure sale, contending the trial court failed to adhere to the requirements of section 45.031, Florida Statutes (2012), for publication of the notice of sale. HSBC also contends on appeal that the trial court erred in denying its motion for rehearing or in the alternative for relief under rule 1.540(b), which asserted that the sale was improper because the notice of sale was not published and the sales price was grossly inadequate. We affirm on all issues.

The trial court entered a final judgment of foreclosure in favor of HSBC in the amount of $787,473.60. The final judgment scheduled an electronic foreclosure sale for March 7, 2011. On February 17, 2011, HSBC’s prior counsel, David J. Stern P.A., moved to withdraw and sought a sixty-day continuance for HSBC to seek new counsel. Prior counsel did not publish notice of the sale or set the motion to withdraw for a hearing. The sale was held as scheduled, with 3L Real Estate, LLC (“3L”), submitting the winning bid of $1600.

With new counsel, HSBC moved to vacate the foreclosure sale, arguing no notice of sale was published as required by section 45.031(2). The trial court denied the motion without elaboration and ordered the clerk to issue the certificate of sale. A day later, HSBC moved for rehearing pursuant to rule 1.530 or in the alternative for relief under rule 1.540(b), arguing the bid was grossly inadequate, HSBC’s failure to bid was due to the failure of its prior counsel to make a bid or obtain postponement of the sale, and the sale was improper since no notice of sale was published. That motion was denied as well.

The standard of review for the denial of a motion to vacate a foreclosure sale is gross abuse of discretion. Long Beach Mortg. Corp. v. Bebble, 985 So.2d 611, 613 (Fla. 4th DCA 2008). In Blue Star Invs. v. Johnson, 801 So.2d 218 (Fla. 4th DCA 2001), this Court stated that to vacate a foreclosure sale, the trial court must find “(1) that the foreclosure sale bid was grossly or startlingly inadequate; and (2) that the inadequacy of the bid resulted from some mistake, fraud or other irregularity in the sale.”

We agree the sale bid was grossly inadequate. See Long Beach, 985 So.2d at 614-615 ($1000 bid was grossly inadequate for a property appraised at $500,000 and when the final judgment was for $716,139.60).

Regarding mistake, HSBC argues prior counsel failed to publish notice of the sale and failed to represent HSBC at the foreclosure sale. HSBC relies on Long Beach, in which the plaintiff hired two firms to represent it during the foreclosure proceedings. One handled the litigation, and one handled the sale. A mix-up between the two firms caused the sales agent employed by one firm to believe that the sale would not proceed, so the plaintiff did not bid on the property, and the property was sold for a grossly inadequate price. The plaintiff moved to set aside the bid, but the purchaser opposed the motion, arguing the plaintiff’s failure to bid was due to a unilateral mistake. The trial court denied the motion, but this Court reversed, holding that even a unilateral mistake which results in a grossly inadequate price was grounds for vacating a sale. Id. at 614. More recently, in CitiMortgage, Inc. v. Synuria, 86 So.3d 1237 (Fla. 4th DCA 2012), this Court held that the trial court was required to set aside a sale when the bid was 1.9% of the judgment amount and the lender’s failure to appear at the sale was due to a substitution of legal counsel. Id.

The bidder, 3L, argues in its answer brief that HSBC never provided any evidence to demonstrate any mistake that would entitle HSBC to relief. HSBC asserts that its statements in its motions are sufficient, but its motions to vacate were not sworn. No transcript of any hearings has been provided. The only evidence that exists in the record that would support HSBC’s argument is the motion to withdraw, filed nineteen days before the foreclosure sale was held. However, that motion alone does not demonstrate that HSBC lacked notice of the foreclosure sale or was not represented by an agent at the sale. We agree that HSBC never provided any evidence to demonstrate any mistake that would entitle HSBC to relief.

On the facts of this case, we cannot say the trial court abused its discretion in refusing to vacate the sale, grant rehearing, or grant relief from judgment on the grounds that the failure to publish a notice of the sale constitutes an irregularity in the sale procedure. In our recent decision in Simonson v. Palm Beach Hotel Condominium Association, Inc., 93 So.3d 436 (Fla. 4th DCA 2012), we held that when a trial court “adopts the statutory framework of section 45.031, it must adhere to the statute’s provisions.” Here, as in Si-monson, the final judgment required that the foreclosure sale be conducted in accordance with section 45.031, Florida Statutes (2012).

However, section 45.031 begins by stating:

In any sale of real or personal property under an order of judgment, the procedures provided in this section and ss. 45.0315-45.035 may be followed as an alternative to any other sale procedure if so ordered by the court.

(emphasis added). As 3L points out, Palm Beach County Circuit Court Administrative Order 3.301-5/10 specifically provided in paragraph B.3.: The administrative order was entered after the supreme court issued its opinion In re Amendments To The Florida Rules Of Civil Procedure, 44 So.3d 555 (Fla.2010). In that opinion, our supreme court accepted the recommendation of the Task Force on Residential Mortgage Foreclosure Cases to adopt a form motion to cancel foreclosure sales. In adopting the recommendation, our supreme court quoted the petition by the Task Force:

Failure to provide proof of publication or pay the clerk sale fee prior to the sale is not grounds for canceling a sale.
Currently, many foreclosure sales set by the final judgment and handled by the clerks of court are the subject of vague last-minute motions to reset sales without giving any specific information as to why the sale is being reset. It is important to know why sales are being reset so as to determine when they can properly be reset, or whether the sales process is being abused.... Again, this is designed at promoting effective case management and keeping properties out of extended limbo between final judgment and sale.

Id. at 558. The Palm Beach County Circuit Court Administrative Order established that in the Fifteenth Circuit, failure to provide proof of publication is not grounds for canceling a foreclosure sale. It is logical to assume that the Fifteenth Circuit made an administrative decision to prohibit the cancelation of a foreclosure sale when a notice of sale was not published because plaintiffs’ counsel could avoid the need for filing a motion to cancel a foreclosure sale by simply failing to publish a notice of sale. As allowed by the statute itself, the Administrative Order alters the sale procedure under section 45.031. On the facts of this case, the trial court had the discretion to deny relief under rules 1.530 and 1.540, despite lack of publication of the notice of sale.

We distinguish this case from Simonson because there was no issue in Simonson about the effect of an administrative order altering the sale procedure under section 45.301.

“The purpose of a [1.530] motion for rehearing is to give the trial court an opportunity to consider matters which it overlooked or failed to consider, and to correct any error if it becomes convinced that it has erred.” Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386, 1389 (Fla. 3d DCA 1986) (internal citation omitted). Rule 1.540 provides an additional, but restrictive mechanism to correct an erroneous decision by the trial court. Id. at 1390. HSBC failed to make an eviden-tiary showing it is entitled to relief under rule 1.540(b). SunTrust Bank v. Puleo, 76 So.3d 1037, 1039 (Fla. 4th DCA 2011) (“If the allegations in the moving party’s motion for relief from judgment ‘raise a color-able entitlement to rule 1.540(b)(3)’s relief, a formal evidentiary hearing on the motion, as well as permissible discovery prior to the hearing, is required.’ ”); Dynasty Express Corp. v. Weiss, 675 So.2d 235, 239 (Fla. 4th DCA 1996) (quoting Southern Bell Tel. & Tel. Co. v. Welden, 483 So.2d 487, 489 (Fla. 1st DCA 1986)). HSBC has failed to provide this court with a transcript of the hearings on its motions. Judicial discretion exercised by the trial court is abused when no reasonable judge would take the view adopted by the trial judge. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). Since the record before us is inadequate to demonstrate the trial court abused its discretion, we affirm. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

Affirmed.

GROSS and HAZOURI, JJ., concur.

      . Neither trial counsel nor the trial court had the benefit of our decision in Arsali v. Chase Home Finance, LLC, 79 So.3d 845 (Fla. 4th DCA 2012) in which we receded from Blue Star to the extent it held that inadequacy or price must always be part of the legal equation in a motion to set aside a foreclosure sale. In its motion for rehearing or relief pursuant to rules 1.530 and 1.540, HSBC clearly argues the sale price was grossly inadequate, so Blue Star is applicable to this appeal. We note that HSBC raised no issue of fraud in the trial court or on appeal.

      . Florida Rules of Civil Procedure, Form 1.996(b).

      . We note that Form 1.996(b) does not state that failure to publish a notice of sale is listed ground for canceling a sale (although, arguably speaking, it could be listed under "other”).

      .3L also points out in its answer brief that with the advent of online sales, publication in a newspaper is not as necessary as it used to be, and the pool of bidders is now larger, thanks to the internet, than the readership of a newspaper.


author: PER CURIAM.

text:
    Carlos Jose OLIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2625.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.
    Rehearing Denied April 12, 2013.

      Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of burglary of a dwelling, possession of burglary tools, and grand theft of a dwelling. We affirm the convictions for burglary of a dwelling and possession of burglary tools without comment. We reverse the conviction for grand theft of a dwelling, as we find that the trial court erred in denying appellant’s motion for judgment of acquittal regarding the evidence of the value of the stolen property. As to that count, we remand for entry of a judgment and sentence for second-degree petit theft.

At trial, the victim testified that she paid “around fourteen, fifteen hundred” for the stolen laptop, which was “approximately two years old,” and around $130 each for the stolen camera and iPod, which were both less than six months old. “Value means the market value of the property at the time and place of the offense[.]” § 812.012(10)(a)l., Fla. Stat. (2009). We have “previously held that mere evidence of the purchase price of an electronic device is insufficient to establish its current value.” Aycock v. State, 87 So.3d 1259, 1260 (Fla. 4th DCA 2012). See, e.g., Austin v. State, 64 So.3d 139 (Fla. 4th DCA 2011). The state, therefore, failed to prove the market value of the items was $100 or more at the time of the offense. §§ 812.012(10)(a)l., 812.014(2)(d), Fla. Stat. (2009). As a result, we reverse the conviction for grand theft and direct the trial court to adjudicate appellant guilty of the lesser-included offense of second-degree petit theft, and to resentence appellant accordingly.

Affirmed in part, reversed in part, and remanded.

WARNER, GERBER and LEVINE, JJ., concur.

      . Section 812.014(3)(a), Florida Statutes (2009), provides that "[t]heft of any property not specified in subsection (2) is petit theft of the second degree and a misdemeanor of the second degree.” We note that "the trier of fact may find the value to be not less than a certain amount” under section 812.012(10)(b), Florida Statutes (2009), only where "the value of property cannot be ascertained,” which is distinct from "the State's failure to present evidence of value (although capable of valuation).” Marrero v. State, 71 So.3d 881, 888-89 (Fla.2011).