author: PER CURIAM. QUINCE, J., LEWIS, J.,

text:
    LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Petitioners, v. Rick SCOTT, Governor, Respondent.
    No. SC17-1122
    Supreme Court of Florida.
    [December 14, 2017]
    John S. Mills, Thomas D. Hall, Courtney Brewer, and Andrew D. Manko, The Mills Firm, P.A., Tallahassee, Florida, for Petitioner
    Daniel E. Nordby, General Counsel, John P. Heekin, Meredith L. Sasso, Peter L. Penrod, and John Maclver, Assistant General Counsel, Executive Office of the Governor, Tallahassee, Florida, for Respondent ...
   PER CURIAM.

This case is before the Court on the petition of the League of Women Voters of Florida (the League) for a writ of quo warranto. Because the issue presented is not ripe for consideration, we dismiss the petition.

The League asks this Court to issue a writ of quo warranto against Governor Rick Scott prohibiting him from “filling any judicial vacancies on Florida’s appellate courts that occur due to terms expiring in January 2019.” The League’s basis for filing the petition is Governor Scott’s December 2016 announcement of intent to appoint the replacements for three justices of this Court. However, use of the writ to address prospective conduct is not appropriate.

Quo warranto is used “to determine whether a state officer or agency has improperly exercised a power or right derived from the State,” Fla. House of Representatives v. Crist, 999 So.2d 601, 607 (Fla. 2008) (emphasis added), and the history of the extraordinary writ reflects that petitions for relief in quo warranto are properly filed only after a public official has acted. In Swoope v. City of New Smyrna, 98 Fla. 1082, 125 So. 371 (1929), we explained that a challenge to an individual’s exercise of official authority

will not be determined by bill in chancery, such a case being regarded as appropriately falling within' the jurisdiction 'of the common law courts by pro-, ceedings in quo warranto. And since this remedy is applicable the moment an office or franchise is usurped, an injunction will not lie to prevent the usurpation, even though the respondent has not yet entered upon the office or assumed to exercise its functions. In such case the party aggrieved should wait until an actual usurpation has occurred, and then seek his remedy in quo warranto.

Id. at 372 (quoting MacDonald v. Rehrer, 22 Fla. 198, 205-06 (1886)) (emphasis added); see also MacDonald, 22 Fla, at 206 (explaining that quo warranto is “to be invoked after entry into, ■ or exercise ■ of authority under [a public official’s] appointment” (second emphasis added)). A party must wait until a government official has acted before seeking relief pursuant to quo warranto because a threatened exercise of power which is allegedly outside of that public official’s authority may not ultimately occur. To address whether quo warranto relief is warranted under such premature circumstances would amount to an impermissible advisory opinion' based upon hypothetical facts.

We previously considered whether issuance of the writ was appropriate in situations where "the state officer or agency had already acted. For example, in Whiley v. Scott, 79 So.3d 702, 705 (Fla. 2011), we reviewed a completed action, in- that the challenged executive order had already been issued. The same is true of State ex rel. Butterworth v. Kenny, 714 So.2d 404, 406 (Fla. 1998), receded from on other grounds, by Darling v. State, 45 So.3d 444 (Fla. 2010), where we considered the authority of the Office of the Capital Collateral Regional Counsel for the Northern and Southern Regions to represent death row inmates in civil rights actions. Most recently, in Ayala v. Scott, 224 So.3d 755, 756-57 (Fla. 2017), we held that quo war-ranto was an appropriate vehicle for the state attorney for the Ninth Judicial Circuit to challenge a series of executive orders that reassigned the prosecution of a number of pending death-penalty eligible cases to the state attorney of another judicial circuit.

Although Governor Scott announced his intent to appoint the replacements for three justices of this Court, clearly no appointments have been made. To use quo warranto to review an action which is merely contemplated but not consummated, as in the present case, would require this Court to depart from the historical application of the writ. This we decline to do. Until some action is taken by the Governor, the matter the League seeks to have resolved is not ripe, and this Court lacks jurisdiction to determine whether quo warranto relief is warranted.

Based upon the foregoing, the petition is hereby dismissed.

It is so ordered.

LABARGA, C.J., and CANADY, POLSTON, and LAWSON, JJ., concur. QUINCE, J., concurs in result only with an opinion, in which PARIENTE, J., concurs.

LEWIS, J., dissents with an opinion.

QUINCE, J.,

concurring in result only.

While I agree with the majority’s conclusion that the “issue presented is not ripe for consideration,” majority op. at 264, I also agree with Justice Lewis that this Court could properly review a petition for quo warranto prior to the actual appointment of a new justice. I write separately to clarify what I believe to be an improper focus in both opinions and to highlight the concessions made by Governor Scott’s counsel during oral argument regarding the Governor’s authority to make these appointments.

The majority currently states:

Although Governor Scott announced his intent to appoint the replacements for three justices to this Court, clearly no appointments have been made. To use quo warranto to review an action which is merely contemplated but not consummated, as in the present case, would require this Court to depart from the historical application of the writ. This we decline to do. Until some action is taken by the Governor, the matter the League seeks to have resolved is not ripe, and this Court lacks jurisdiction to determine whether quo warranto relief is warranted.

Majority op. at 266 (emphasis added). First, the majority implies that the action would not be ripe until the Governor makes an appointment (“clearly, no appointments have been made ... merely contemplated but not consummated”). However, the majority then appears to suggest that only “some action” would be necessary for this Court to consider the Governor’s authority to make said action. Majority op. at 266. This inconsistent language creates unnecessary confusion about when a future petition for quo warranto would be ripe for this Court’s consideration. This confusion is compounded by Justice Lewis’ dissent, which also focuses on the presumption that the issue may only become ripe once the Governor has made an appointment. See Dissenting op. at 269 (“The majority’s statement today that the appointment must be consummated before quo warranto applies .... ”).

Furthermore, the majority ignores that we have previously granted a petition for a writ of quo warranto challenging the Governor’s authority to endeavor to fill a judicial vacancy. Lerman v. Scott, No. SC16-783, 2016 WL 3127708, (Fla. Jun. 3, 2016). In Lerman, the petitioners sought the writ of quo warranto “to show by what authority [Governor Scott] has endeavored to fill a vacancy, created by the Resign to Run statute, in the office of county court judge, in Group 11 of the Fifteenth Judicial Circuit, through an appointment.” Petition at 1, 2016 WL 2760518, Lerman v. Scott, No. SC16-783. We granted the writ in Lerman because Governor Scott acted by requesting the Judicial Nominating Commission to provide a list of names for his consideration to make an appointment. Lerman, 2016 WL 3127708, at *1 (“The Governor shall not utilize the Fifteenth Judicial Circuit Judicial Nominating Commission to perform any functions related to nominating candidates for this judicial office.”). Thus, unlike the dissent’s characterization of Lerman, we were not merely responding to an announced intention, dissenting op. at 268-69, but did find an action short of an actual appointment by which the petitioner could question the Governor’s authority. Under this Court’s precedent, we have the authority to act prior to the Governor’s making an appointment that is contrary to law.

On the merits of the instant petition, at oral argument in this Court, Governor Scott’s counsel conceded that “the Governor’s term concludes at the end of the day on [the first] Monday” in January, “the same day that the Justices’ terms end.”. The Governor’s counsel further conceded that if the justices do not leave before the end of their terms and “if the new governor’s term has begun, then the new governor would have the authority to make the appointment.” This position is the same as that taken by the majority of Florida voters in 2014 in response to a proposed constitutional amendment which would have required the Governor “to prospectively fill vacancies in a judicial office.”

The Governor’s concession reflects Florida law. Under the Florida Constitution, when a vacancy occurs in a judicial office to which election for retention applies, “the governor shall fill the vacancy by appointing for a term ending on the first Tuesday after the first Monday in January of the year following the next general election.” Art. V, § 11(a), Fla. Const. However, a vacancy exists only “upon the expiration 'of the term being served by the justice.” Art. V, § 10(a), Fla. Const. We have explained that this provision “expressly provides that a vacancy in a merit retention judicial office does not occur until the end of the judge or justice’s term.” Advisory Op. to Governor re Judicial Vacancy Due to Mandatory Retirement, 940 So.2d 1090, 1091 (Fla. 2006) (emphasis added).’

Moreover, under article IV, section 5(a), of the Florida Constitution, a governor’s term does not begin until “the first Tuesday after the first Monday in January” of the year following the general election. As noted in an appendix to the instant petition filed in this Cóurt, Governors Bush, Crist, and Scott all took the oath of office well before the first Tuesday after the first Monday in January so as to assume gubernatorial duties immediately on the first day of their respective terms. See App. to Pet’rs’ Reply at 2-4.

"Although not before us, the Governor also conceded that a declaratory action would be appropriate to challenge his endeavor to replace the retiring justices. I agree. Moreover, while I agree with the majority that it is not appropriate for us to rule on the petition at this time, I .do not agree that it would only become appropriate to do so after Governor Scott has consummated an appointment. Furthermore, the concession made by the Governor during oral argument effectively answers the question raised in the petition.

PARIENTE, J., concurs.

LEWIS, J.,

dissenting.

It is most unfortunate that the majority finds it necessary to summarily dismiss this common law action to protect our State from blatantly unconstitutional actions for reasons other than a proper analysis of the law and do so directly contrary to the application of quo warranto in this judicial appointment context in 2016 in Lerman v. Scott, No. SC16-783, 2016 WL 3127708 *1 (Fla. June 3, 2016), in which the'entire Court either concurred or concurred in result. It is even more regrettable and distressing that future Floridians have lost the ability to protect themselves and society from clearly unconstitutional action. The Florida Constitution requires devoted protection- and the Florida citizens deserve better. Contrary to Florida law and the general common law, the majority has- now announced that the challenged conduct must have already produced a constitutional crisis and calamitous result before illegal acts of government officials are subject to quo warranto review or relief. Florida law has generally recognized that quo warranto is available to prevent significant impacts on the operation of government, Whiley v. Scott, 79 So.3d 702, 708 (Fla. 2011), but the majority now negates that common sense, reasonable, and logical analysis to require that-illegal and unconstitutional conduct which produces disarray must have already occurred to allow judicial action, While writs of quo warranto may be applied, to acts of state officials that have already been committed,, the writ is not foreclosed as an avenue of relief for threatened and imminent future actions of state officials, based on the clear Florida law.

As recently as the summer of 2016, this Court granted a petition for writ of quo warranto in response to an announced intention by a Governor to appoint (not having already appointed) a judicial officer to fill a position vacated by a judge seeking higher" office. Lerman, 2016 WL 3127708, at *1. County Court Judge Johnson resigned pursuant to the Resign" to Run statute and Lerman submitted the necessary paperwork to become a candidate for the judicial position previously held by Judge Johnson. Governor Scott, as he has done here, announced that he was going to make an appointment to the position held by Judge Johnson. Lerman filed a petition for writ of quo warranto in this Court to prevent Governor Scott from appointing or attempting to appoint a person to the position previously held by Judge Johnson contrary to law. This Court granted the petition for quo warranto and ordered the position filled by election. Id This Court further ordered that any functions related to the future appointment of candidates for this position terminate. Id. The majority’s statement today that the appointment must be “consummated” before quo war-ranto applies is simply incorrect, contrary to common sense, and, in my view, dangerous. Majority op. at 266.

Under the majority view, elected politicians can announce their intentions and plan to engage in all types of illegal and harmful conduct but no relief is available until the illegal and harmful act has already inflicted its damage. Magnificént trees cut, pristine waters fouled, and unthinkable harm inflicted upon our citizens, which may not be prevented when the actor plans and even announces his intentions. Today, we have a new test. The writ is only available when the illegal act is taken and harm is actually inflicted — at times even irreparable harm.

The majority simply ignores- that the Supreme Court of Vermont has recently granted a petition for writ of quo warranto under virtually identical circumstances as we face here. Turner v. Shumlin, 163 A.3d 1173 (Vt. 2017). In Vermont, the former Governor announced his intention to appoint the replacement for. a current Supreme Court Justice who decided not to seek retention for another term. Id. at 1176. The Justice’s term would not expire until after the current Governor’s term, had expired. Id The same argument was made in Vermont as is advanced by the majority here that the court could not act until an illegal appointment was actually made. Id. at. 1177. In rejecting the principle announced by the majority here, the Supreme Court of Vermont recognized that the circumstances, were not conjectural, hypothetical, or abstract. Id The announced intentions were concrete and .unequivocal. H. Understanding that there is a fundamental interest in ensuring that the constitutional process is sound, the court held that the Governor could .not constitutionally appoint the Justice in question’s replacement. Id. at 1188. We must all heed the closing words from the Vermont Supreme Court:

We reach our decision having in mind the overarching principles5 of our democracy: the integrity of our governing institutions and the people’s confidence in them..

Id.

Today, the majority opinion has chosen to cherrypick only certain rules with regard to writs of quo warranto, while ignoring the clear precedent from Florida and other jurisdictions that have emphasized the notion that the writ can be appropriate in cases of threatened or attempted action by a state official. State ex rel. Bruce v. Kiesling, 632 So.2d 601, 603 (Fla. 1994) (“[W]e note that the common law remedy of quo warranto is employed either to determine the right of an individual to hold public office or to .challenge a public officer’s attempt to exercise some right or privilege derived from the State.” (emphasis added)); State ex rel. Eryin v. Jacksonville Expressway Auth., 139 So.2d 135, 137 (Fla. 1962) (“It is a proper function of the Attorney General, in the interest of the public, to test the exercise, or threatened exercise, of power by such a corporate state agency through the process of a quo warranto proceeding.” (emphasis added)); Adm’r, Retreat Hosp. v. Johnson, 660 So.2d 333, 339 (Fla. 4th DCA 1995) (“[T]he remedy of quo warranto ... is designed to challenge a public officer’s attempt to exercise some right or privilege derived from the state .... ” (emphasis added)).

[I]t has been held that unlawful'exercise of a franchise can be challenged by quo warranto, even though such exercise is merely planned and has not yet begun, where preparation and public announcement have made the matter imminent and taken it out of the realm of mere general intention.[n.4]
[n.4] State ex rel. City Bank & Trust Co. v. Marshall & Ilsley Bank, 4 Wis. 2d 315, 90 N.W.2d 556 (1958).

65 Am. Jur. 2d Quo Warranto § 50 (2011) (emphasis added).

Moreover, this Court has, in the past, entertained a petition for writ of quo war-ranto in a ease challenging the powers and duties of certain state actors, where no attempt to exert such powers had yet been taken. See State ex rel. Feltman v. Hughes, 49 So.2d 591 (Fla. 1950). Similarly, courts across the United States have applied the remedy of a writ of quo war-ranto to threatened future actions. See Shumlin, 163 A.3d 1173 (petition for quo warranto seeking to enjoin the governor from filling a future judicial vacancy occurring after the governor’s term was ripe for review); Marshall & Ilsley Bank, 90 N.W.2d at 559 (remedy of quo warranto not premature where defendant announced its intent to act because the announcement took the challenged actions out of the realm of mere general intention). Thus, the majority’s opinion today engages in a selective legal analysis and refuses to acknowledge the nationwide precedent that contradicts its conclusion.

Further, in State ex rel. Butterworth v. Kenny, 714 So.2d 404, 406 (Fla. 1998), the complained-of conduct had ceased and the civil litigation actions at issue had been dismissed, so there was no present conduct necessary for this Court to rule on. Nonetheless, this Court determined that it should still address the issue raised because it was one of great public importance and was likely to recur and ultimately held that no future civil actions could be filed by Capital Collateral Regional Counsel. Id. at 406, 411. Therefore, as demonstrated in Kenny, the intention to act is not foreclosed from quo warranto relief.

Additionally, I take issue with the majority’s attempt to limit the writ of quo warranto only to past acts, when this Court has, in the past, declined to so limit a similar arbitrary challenge to the timeliness of a petition for writ of quo warranto. For example, in Florida House of Representatives v. Crist, 999 So.2d 601 (Fla. 2008), the then-governor challenged the appropriateness of the relief of quo war-ranto where the House of Representatives challenged Governor Crist’s execution of a compact with the Seminole Indian Tribe of Florida because he had already signed the compact, arguing that the writ’s issuance was foreclosed for past state acts. Id. at 607. In that case, as in the present case, the governor attempted to handicap the writ of quo warranto based on the arbitrary notion that the writ is limited to actions committed at specific times. The attempt to do so here, as in Florida House of Representatives, should fail. I fundamentally disagree with depriving the citizens of Florida of their ability to challenge inappropriate action by a state official simply based on this unfounded limitation. Today’s decision allows state officials, such as Governor Scott, to circumvent this ex-traordinaiy writ at the convenience of the office holder based on a ripeness challenge that does not, in my view, have any legal justification.

The majority further wrongly attempts to cloak its flawed reasoning in a reluctance to discuss the historical application of the writ, majority op. at 266, despite our past precedent authorizing the Court to do just that, upon proper showing. See State ex rel. Watkins v. Fernandez, 106 Fla. 779, 143 So. 638, 641 (1932) (discussing how this Court has, on many occasions, used the common law writ of quo warranto and applied it to circumstances beyond those originally intended because equity mandates that a wrong have a remedy and that the law should evolve with the varying needs of society); Belle Island Inv. Co. v. Feingold, 453 So.2d 1143, 1146 (Fla. 3d DCA 1984) (“Quo warranto is a remedial writ and its use may be extended to new situations on a proper showing.” (citing State ex rel. Pooser v. Wester, 126 Fla. 49, 170 So. 736 (1936))).

The majority goes astray because it relies entirely upon cases in which a challenged action has already occurred. I do not disagree with this application of quo warranto under those circumstances. The majority predicates its flawed reasoning by interpreting those cases to say that quo warranto can only be based on those past acts. Yet, no case in Florida so limits this extraordinary writ. Therefore, I disagree with tlie majority’s conclusion, as it applies to this case. Thus, for the reasons set forth above, I dissent.

Further, although as unfortunate as the majority’s dismissal may be, the concurring opinion is even more misdirected. It appears that those concurring in result seem to now believe that mere arguments of counsel or statements of counsel in response to general questions, interpreted to be “concessions,” have been transformed into some type of final, binding legal stipulations that now prohibit and preclude, as a matter of law, the precise subject matter that generated this action seeking quo warranto relief. The majority has certainly not endorsed that view and I must admit it is a theory highly questionable at the very best.

      . We recognize that Crist contained language suggesting the writ could be used to prohibit future conduct. See, e.g., 999 So.2d at 607 (“The Governor contends that this Court lacks jurisdiction because the House does not seek either to remove him from office or to enjoin the future exercise of his authority. We conclude, however, that these are not the only grounds for issuing such a writ.”). However, the history of quo warranto as well as our precedent belie any suggestion to this effect. In Crist, we explained that "petitions for the writ historically have been filed after a public official has acted,” and the disputed act had already occurred. Id. In that case, the Florida House of Representatives challenged the execution by Governor Charles Crist of a compact with the Seminole Indian Tribe of Florida. See id. at 603.

      . Although the United States District Court for the Northern District of Florida issued summary judgment in favor of the State,'see Kenny, 714 So.2d at 406, the federal civil rights action had nonetheless been filed and we, therefore, addressed a past action taken by a state agency,

      . Gavel to Gavel Video Portal, Archived Oral Argument of League of Women Voters of Fla. v. Rick Scott, Governor, SC17-1122, (Nov. 1, 2017, at 28:10, 29:44) (available at http:// www.wfsu.org/gavel2gavel/viewcase.php? eid=2462).

      . Gavel to Gavel Video Portal, Archived Oral Argument of League of Women Voters of Fla. v. Rick Scott, Governor, SC17-1122, (Nov. 1, 2017, at 33:06, 36:15) (available at http:// www.wfsu.org/gavel2gavel/viewcase.php? eid=2462).

      .Fla. Dep’t of State, Div. of Elections, Pro-sp'ective Appointment of Certain Judicial Vacancies, http://dos.electi0ns.myflorida.com/ initiatives/initdetail.asp?account= 10& seq-num=91. The proposed amendment garnered the support of only 47.9% of voters, well short of the 60% threshold for constitutional amendments. N.Y. Times, Florida Election Results, (Dec. 17, 2014), https://www.nytimes. com/elections/201,4/florida-elections; see Art. XI § 5, Fla. Const.

      , Gavel to Gavel Video Portal, Archived Oral Argument of League of Women Voters of Fla. v. Rick Scott, Governor, SC17-1122, (Nov. 1, 2017, at 39:33) (available at http://www.wfsu. org/gaveI2gavel/viewcase.php?eid=2462) (“I’m not saying there might not .be some other vehicle available to solve this question— an advisory opinion request, possibly a declaratory judgment . . , .’’).

      . See Advisory Op. to the Governor re Jud. Vacancy Due to- Mandatory Ret., 940 So.2d 1090, 1093-94 (Fla. 2006).

      . See also Richard W. Ervin & Roy T. Rhodes, Quo Warranto in Florida, 4 U. Fla. L. Rev. 559, 564 (1951) ("Injunction will not lie to prevent usurpation of a franchise or office, even though the respondent has not entered upon the duties of the office. The remedy is at law, by quo warranto, to be invoked after entry or an attempt to exercise authority by virtue of the election or appointment.” (emphasis added) (citing Winter v. Mack, 142 Fla. 1, 194 So. 225 (1940); MacDonald v. Rehrer, 22 Fla. 198 (1886))); 43 Fla. Jur. 2d Quo Warranto § 32 (2015) ("[I]t is a proper function of the Attorney General, in the interest of the public, to test exercise, or threatened exercise, of power by a corporate state agency through the process of a quo warranto proceeding.” (emphasis added)); Phillip J. Pado-vano, Florida Appellate Practice § 3:16 (2016 ed.) ("Quo warranto is ... commonly used in the supreme court to challenge proposed actions that are beyond the authority of a public official.” (emphasis added)); Patrick John McGinley, Elements of an Action § 1703:1 (West’s Fla. Prac. Series Vol. 21 2017-2018 ed.) ("Petitions for a writ of quo warranto historically have been filed after a public official has acted. But the writ is also available to challenge future actions.” (emphasis added)).


source: Caselaw Access Project

author: LAWSON, J.,

license: Public Domain

text:
    IN RE: AMENDMENTS TO the RULES REGULATING the FLORIDA BAR—CHAPTER 21 MILITARY SPOUSE AUTHORIZATION TO ENGAGE IN the PRACTICE OF LAW IN FLORIDA In re: Amendments to the Rules of the Supreme Court Relating to Admissions to the Bar
    CASE NOS.: SC17-156 & SC17-230
    Supreme Court of Florida.
    DECEMBER 14, 2017
   The Florida Bar has filed a petition to amend the Rules Regulating the Florida Bar to include new rules that establish a process by which the spouse of a member of the United States Armed Forces stationed in Florida may obtain authorization to practice law in Florida without taking the Florida Bar Exam. In a companion petition, the Florida Board of Bar Examiners proposes amending the Rules of the Supreme Court Relating to Admissions to the Bar to include a new rule that sets out the application fee a person seeking authorization under the Bar’s proposal must pay.

The Court having considered the proposed amendments, and the comment filed, both petitions are. hereby dismissed. The Bar and the Board are directed to file a joint petition within ninety days' of the date of this order that imposes additional restrictions on those requesting authorization to practice law in Florida as the spouse of a member of the United States Armed Forces. .Such restrictions must include a time limit on the duration of the authorization and must require that all persons who receive authorization associate, either through participation in a law firm or through mentorship, with a member of the Bar who is eligible to practice law in Florida for the duration of the authorization.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and POLSTON, JJ„ concur.

LAWSON, J., dissents with an opinion, in which CANADY, J., concurs.

LAWSON, J.,

dissenting.

As proposed, these rules would allow the spouse of a member of our United States Armed Forces to practice law in Florida only while his or her spouse is on active duty and stationed in Florida or on an unaccompanied or remote assignment with no dependents authorized after being transferred from Florida; only while the spouse is living with his or her spouse in Florida (with the unaccompanied or remote assignment exception); and only, if the spouse first establishes his or her character and fitness to the satisfaction of the Florida Board of Bar Examiners (and, by extension, this Court). In addition, the spouse must have graduated from a law school accredited by the American Bar Association; have successfully passed another state’s written bar examination; and have been successfully admitted to practice in another U.S. jurisdiction. Significantly, the spouse, is not eligible for special admission under the proposed rules if he or she is- not a member of the bar in good standing in every jurisdiction in which the spouse has practiced law' previously, is subject to lawyer discipline in-.any other jurisdiction, or is even the subject' of a pending disciplinary matter in any other jurisdiction. If admitted, the spouse is required to be affiliated with and mentored, by a member of The Florida Bar, unless he or she has successfully completed three or more years of active practice in another U.S. jurisdiction. Finally, the spouse will be. subject to the disciplinary jurisdiction of The Florida, Bar and this Court. These requirements, and others,, suitably protect the public, Accordingly, I would adopt the rules, as proposed, for the good and sufficient reason that they appropriately give form to the gratitude that we should all share for the sacrifices made each day by timóse serving in our Armed Forces, and by their families. . .

CANADY, J., concurs.

      . The proposed rule" would allow the spouse to obtain admission prior to moving to Florida, but only if he or she provides evidence of intent to reside in Florida with his or her spouse within six months.


author: POLSTON, J. LEWIS, J., PARIENTE, J., LAWSON, J.,

text:
    ALTMAN CONTRACTORS, INC., Appellant, v. CRUM & FORSTER SPECIALTY INSURANCE COMPANY, Appellee.
    No. SC16-1420
    Supreme Court of Florida.
    [December 14, 2017]

      Adam P. Handfinger and Meredith N. Reynolds of Peckar & Abramson, P.C., Miami, Florida, for Appellant
    Kimberly A. Ashby of Foley & Lardner, LLP, Orlando, Florida; and Holly S, Harvey of Clyde & Co., Miami, Florida, for Appellee
    Gregory D. Podolak of Saxe Doernber-ger & Vita, P.C., Naples, Florida, and Brian J. Clifford of Saxe Doernberger & Vita, P.C., Trumbull, Connecticut, Amicus Curiae United Policyholders
    Mark A. Boyle, Molly Chafe Brockmeyer, and Alexander A. Brockmeyer of Boyle & Leonard, P.A., Fort Myers, Florida; Christine A. Gudaitis and Ashley B. Jordan of Ver Ploeg & Lumpkin, P.A., Miami, Florida, Amici Curiae Construction Association of South Florida, South Florida Associated General Contractors, Leading Builders of America, Florida Homebuild-ers Association, and National Association of Home Builders
    W. Gray Dunlap, Jr. of W. Gray Dunlap, Jr., P.A., St. Petersburg, Florida; and Steven M. Klepper of Kramon & Graham, P.A., Baltimore, Maryland, Amici Curiae American Insurance Association, Florida Insurance Council, and Property Casualty Insurers Association of America
   POLSTON, J.

Altman Contractors, Inc., the general contractor for the construction of a condominium, was insured by Crum & Forster Specialty Insurance Company (“C & F”) on a general liability policy. C & F had a duty to defend Altman in any “suit,” as defined by the policy, arising from the project.

Altman claims that this duty to defend was invoked when the property owner served it with several notices under chapter 558, Florida Statutes, a statutory process for resolving construction defect claims that is a condition precedent to filing a lawsuit. There are no issues presented to us that would bring into question whether there is underlying coverage under the policy for at least some of the claims.

We review the following question of law certified by the United States Court of Appeals for the Eleventh Circuit (rephrased only to match references within this opinion):

Is the notice and repair process set forth in chapter 558, Florida Statutes, a “suit” within the meaning of the commercial general liability policy issued by C & F to Altman?

Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., 832 F.3d 1318, 1326 (11th Cir. 2016). We answer this question in the affirmative because the chapter 558 presuit process is an “alternative dispute resolution proceeding” as included in the policy’s definition of “suit.” However, we do not address whether, in this case, C & F consented to Altman’s participation in the chapter 558 process, thereby giving rise to its duty to defend, because it is outside the scope of the certified question and an issue of fact disputed by the parties.

BACKGROUND

Altman was the general contractor for the construction of a high-rise residential condominium in Broward County, Florida, Sapphire Condominium (“Sapphire”). Altman was insured by C & F for the Sapphire project through seven consecutive one-year commercial general liability (CGL) insurance policies, all of which were materially the same (“the policy”). These policies were in effect from February 1, 2005, through February 1, 2012.

The policy provided in pertinent part:

We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this- insurance applies. We will have the right and duty to defend the. insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. We may, at our discretion, investigate any “occurrence” and settle any claim or “suit” that may result.

(Emphasis added.) The policy defined the term “suit” as follows:

“Suit” means a civil proceeding in which damages because of “bodily injury,” “property damage” or “personal and advertising injury” to which this insurance applies are alleged. “Suit” includes:
a. An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent; or
b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent.

The policy did not provide further definitions for “civil proceeding” or “alternative dispute resolution proceeding” as used within this definition of “suit.”

Between April 2012 and November 2012, Sapphire served Altman with several chapter 558 notices of claim, which cumulatively claimed over 800 construction defects in the Sapphire project. On or about January 14, 2013, Altman notified C & F of Sapphire’s claims and demanded, pursuant to the policy, that C & F defend and indemnify Altman as to Sapphire’s claims. C & F denied that Sapphire’s notices of claim invoked its duty to defend because the notices did not constitute a “suit.” When C & F refused to .defend Atman, it retained counsel to defend the notices of claim.

On May 28, 2013, Sapphire served Atman with a supplement to the November 2012 notice, claiming thirteen additional deficiencies in the Sapphire project. Sapphire demanded that Atman “take all measures necessary to correct the identified construction and/or design defects.”

On August 5, 2013, C & F, maintaining its position that Sapphire’s notices of claim did not invoke its duty to defend Atman under the policy, hired counsel to defend the claims. According to C & F, it retained counsel for Atman under a reservation of rights in anticipation of possible litigation. Atman objected to C & F’s selection of counsel, demanded that its original counsel be paid to continue defending, and requested reimbursement from C & F for' the fees and expenses incurred since notifying C & F of Sapphire’s notices of claim. C & F denied Atman’s requests. Ultimately, Altman settled all of Sapphire’s claimed construction defects without any lawsuit being filed and without C & F’s involvement.

Atman filed a declaratory judgment action in the United States District Court for the Southern District of Florida seeking a declaration that C & F owed a duty to defend and to indemnify it under the policy. Altman moved for partial summary judgment “solely on the issue of whether [0 & F’s] duty to defend its insured, [Altman], was triggered when [Altman] demanded a defense to the” notices of claim. Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., 124 F.Supp.3d 1272, 1275 (S.D. Fla. 2015). C & F also moved for summary judgment. Id.

The federal district, court concluded that nothing in chapter 558 precludes coverage during the chapter 558 presuit process “if the policy otherwise would provide for coverage.” Id. at 1278. Looking to the terms of the policy, the federal district court found “no ambiguity in the policy provisions at issue” and concluded that “[n]oth-ing about the Chapter 558 process satisfies th[e] definition” of “civil proceeding.” Id. at 1279. Thus, the federal district court denied Altman’s motion for partial summary judgment and granted summary judgment for C & F. Id. at 1282-83.

Altman appealed to the United States Circuit Court of Appeals for the Eleventh Circuit, and the Eleventh Circuit certified the legal issue before us. 832 F.3d at 1326.

ANALYSIS

Whether C & F has a duty to defend Altman during the chapter 558 process is determined by whether the.process is a “suit” as defined by the policy, “[insurance policy interpretation ... is a question of law, subject to de novo review.” Penzer v. Transp. Ins. Co., 29 So.3d 1000, 1005 (Fla. 2010). We construe insurance contracts according to their plain language. Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1086 (Fla. 2005). And the parties do not dispute that Florida law controls.

A. Chapter 558 Process

Chapter 558, titled “Construction Defects,” sets forth procedural requirements before a claimant may file an action for a construction defect.' See § 558.003, Fla. Stat. (2012). Specifically, a claimant must “serve written notice of claim on the contractor, subcontractor, supplier, or design professional, as applicable” before the claimant may file an action for a construction defect. §,558.004(1), Fla. Stat. (2012).

When Altman received Sapphire’s first notice of claim, section 558.001, Florida Statutes (2012), provided the following legislative findings and declaration:

The Legislature finds that it is beneficial to have an alternative method to res’olve construction disputes that would reduce the need for litigation as well as protect the rights of property owners. An effective alternative dispute resolution mechanism in certain construction defect matters should involve the claimant filing a notice of claim with the contractor,- subcontractor, supplier, or design professional that the claimant asserts is responsible for the defect, and should provide the contractor, subcontractor, supplier, or design professional with an opportunity to resolve the claim without resort to further legal process.

(Emphasis added.)

Upon receipt of a chapter 558 notice of claim, the recipient “must serve a written response to the claimant” within the statutorily specified time-period, providing either an offer “to remedy the alleged construction defect at no cost to the claimant,” “to compromise and settle the claim by monetary payment,” “to compromise and settle the claim by a combination of repairs and monetary payment,” a statement disputing the claim, or a statement that any monetary payment will be determined by the recipient’s insurer. § 558.004(5), Fla. Stat. (2012).- Once the claimant “receives a timely settlement offer,” - 'the claimant “must accept or reject the offer” in writing. § 558.004(7), Fla. Stat. (2012).

“[T]he claimant may, without further notice, proceed with an action” against the recipient if the parties either agree to “a partial settlement or compromise of the claim,” the recipient “disputes the claim and will neither remedy the defect nor .compromise and' settle the claim,” or the claimant does not receive a response “within the time provided.” § 558.004(6), Fla. Stat. (2012). If the offeror satisfies the parties’ agreement within a reasonable period of time, “the claimant is barred from proceeding with an action for the claim described in the .notice of claim or as otherwise provided in the accepted settlement offer.” § 558.004(8), Fla.. Stat. (2012). “[A]ny offer or failure to offer ... to remedy an alleged construction defect or to compromise and settle the claim by monetary payment does not constitute an admission of liability with respect to the defect and is not admissible” in a subsequent lawsuit. § 558.004(9), Fla. Stat. (2012). “If a claimant initiates an action without first accepting or rejecting the offer, the court shall stay the action upon timely motion until the claimant complies.with this subsection.” § 558.004(7), Fla. Stat. (2012). “In the event of ..-. litigation,” the trial court may order sanctions for failing to provide requested discovery ' during the chapter 558 process. § 558.004(15), Fla. Stat. (2012).

B. “Suit” within the Policy’s Definition

As stated above, the policy defines “suit” as follows:

“Suit” means a civil proceeding in which damages because of “bodily injury,” “property damage” or “personal and advertising injury” to which this insurance applies are alleged. “Suit” includes:
a.1 An arbitration proceeding in which such damages are claimed and to which the insured must' submit or does submit with our consent; or
b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent.

Initially, the policy defines “suit” as “a civil proceeding in which damages because, of ‘bodily injury,’ ‘property damage’ or ‘personal and advertising injury1 to which this insurance applies are alleged.” (Emphasis added.) Therefore, to qualify as a “suit” within this initial portion of the definition, the chapter 558 process must constitute a “civil proceeding.”

In Raymond James Financial Services, Inc. v. Phillips, 126 So.3d 186, 190 (Fla. 2013) (quoting Black’s Law Dictionary 1324 (9th ed. 2009)), this Court employed a definition of “proceeding” as “[a]ny procedural means for seeking redress from a tribunal or agency.” The Court also noted that a “proceeding” is “a particular step or series of steps in the enforcement, adjudication, or administration of rights, remedies, laws, or regulations.” Id. n.4 (quoting Merriam-Webster's Dictionary of Law 387 (1996)). The term “civil proceeding” was added in the Tenth Edition of Black’s Law Dictionary and is defined as “[a] judicial hearing, session, or lawsuit in which the purpose is to decide or delineate private rights and remedies, as in a dispute between litigants in a matter relating to torts, contracts, property, or family law.” Black’s Law' Dictionary, 300 (10th ed. 2014).

In light of these definitions, the chapter 558 notice and repair process cannot be considered a civil proceeding under the policy terms because the recipient’s participation in the chapter 558 settlement process is not mandatory or adjudicative. See § 558.004(5)-(6), Fla. Stat. (2012). Upon receipt of the required notice of claim, the recipient may choose to not respond and, thereby, force the claimant to file a lawsuit to recover for the identified construction defect. Id,

In other words, chapter 558 does not place any obligation on the insured to participate in the chapter 558 process. The chapter 558 framework has never been anything other than a voluntary dispute resolution mechanism on the part of the insured, despite its requirement that the claimant serve the insured with a notice before initiating a lawsuit. Further, the chapter 558 process does not take place in a court of law or employ any type of adjudicatory body. Nor does the chapter 558 process produce legally binding re-suits. Rather, chapter 558 sets forth a presuit process whereby the claim may be resolved solely by the parties through a negotiated settlement or voluntary repairs without ever filing a lawsuit. Therefore, the chapter 558 process is not a “civil proceeding” within the policy definition of “suit.”

However, in subparagraph (b), the policy broadens the definition of “suit” to “include[],” “[a]ny other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent.” Looking to the plain meaning of the policy’s terms, “alternative dispute resolution” means “[a] procedure for settling a dispute by means other than litigation.” Black’s Law Dictionary, 91 (9th ed. 2009).

Chapter 558 falls within this definition as a statutorily required presuit process aimed to encourage the claimant and insured to settle claims for construction defects without resorting to litigation. See §§ 558.001, 558.004.' Indeed, the Legislature explicitly described chapter 558 as “[a]n effective alternative dispute resolution mechanism,” intended to be beneficial for reducing construction defect litigation. § 558.001 (emphasis added); see also Specialty Eng’g Consultants, Inc. v. Hovstone Props. Fla., LLC, 968 So.2d 680, 681 (Fla. 4th DCA 2007) (recognizing that “the Florida Legislature created an alternative method to resolve construction disputes involving multiple parcels” (emphasis added)). Therefore, we conclude that the chapter 558 process is an “alternative dispute resolution proceeding” within the plain meaning of this policy term, the same as mediation would be.

The next part of the policy’s definition of “suit” under subparagraph (b) requires that “such damages” be claimed in the “alternative dispute resolution proceeding.” Chapter 558 explicitly provides for claimants seeking damages, In fact, section 558.002(3) defines a “claimant” as one asserting a “claim for damages.” Likewise, the notice of claim “must describe the claim in reasonable detail sufficient to determine the general nature of each alleged construction defect and a description of the damage or loss resulting from the defect.” § 558.004(1). Further, section 558.004(5) includes “monetary payment” as a potential resolution of a chapter 558 claim. Thus, chapter 558 provides for damages, as required by the policy’s definition of “suit” under subparagraph (b).

Finally, the policy’s definition of “suit” under subparagraph (b) requires C & F’s consent to Altman’s submission to the “alternative dispute resolution proceeding” in order to invoke C & F’s duty to defend Altman under the policy. However, we do not address whether, in this case, C & F consented to Altman’s participation in the chapter 558 process because it is outside the scope of the certified question and an issue of fact disputed by the parties.

CONCLUSION

Therefore, we answer the certified question in the affirmative and hold that the notice and repair process set forth in chapter 558 constitutes a “suit” within the meaning of the commercial general liability policy issued by C & F to Altman. Although the chapter 558 process does not constitute a “civil proceeding,” it is included in the policy’s definition of “suit” as an “alternative dispute resolution proceeding” to which the insurer’s consent is required to invoke the insurer’s duty to defend the insured. Accordingly, we remand this case to the United States Court of Appeals for the Eleventh Circuit for further proceedings.

It is so ordered.

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

LEWIS, J., concurs with an opinion.

PARIENTE, J., concurs in part and dissents in part with an opinion.

LAWSON, J., concurs in part and dissents in part with an opinion.

LEWIS, J.,

concurring.

Although I agree fully with the result reached by the majority today, I write separately to emphasize that there are multiple steps in the final analysis that must be crossed to find the proper conclusion under Florida law. Namely, without first determining if coverage exists at all, it is difficult to simply proceed to answer the question of whether that coverage applies to the alleged defects at issue in this case in the chapter 558, Florida Statutes, notice of claim process.

This Court has, in the past, explained that commercial general liability (CGL) policies typically do not cover workmanship defects:

The majority view holds that the purpose of this comprehensive liability insurance coverage is to provide protection for personal injury or for property damage caused by the completed product, but not for the replacement and repair of that product.
To interpret the policy as providing coverage for construction deficiencies, as asserted by the petitioners and a minority of states, would enable a contractor to receive initial payment for the work from the homeowner, then receive subsequent payment from his insurance company to repair and correct deficiencies in his own work.... We agree with the explanation of this type of coverage as' stated by the Supreme Court of New Jersey in Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 405 A.2d 788 (1979), in which it said:
An illustration of this fundamental point may serve to mark the boundaries between “business risks” and occurrences giving rise to insurable liability. When a craftsman applies stucco to an exterior wall of a home in a .faulty manner and discoloration, peeling and chipping result, the poorly-performed work will perforce have to be replaced or repaired by the tradesman or by a surety. On, the other hand, should the stucco peel and fall from the wall, and thereby cause injury to the homeowner or his neighbor standing below or to a passing automobile, an occurrence of harm arises which is the proper subject of risk-sharing as provided by the type of policy before us in this case.

LaMarche v. Shelby Mut. Ins. Co., 390 So.2d 325, 326-27 (Fla. 1980) (quoting Weedo, 405 A.2d at 791-92).

Chapter 558, Florida Statutes, concerns actions arising as a result of construction defects. § 558.001, Fla. Stat. (2016). Specifically, the term “construction defect” is defined as follows:

(5) “Construction defect” means a deficiency in, or a deficiency arising out of, the design, specifications, surveying, planning, supervision, observation of construction, or construction, repair, alteration, or remodeling of real property resulting from:
(a) Defective .material, products, or components used in the construction or remodeling; ,
(b) A violation of the applicable codes in effect at the time of construction or remodeling which gives rise to a cause of action pursuant to s. 553.84;
(c) A failure of the design of- real property to meet the applicable professional standards of care at the time of •governmental approval; or
(d) A failure to construct or remodel real property in accordance with accepted trade standards for good and workmanlike construction at the time of construction.

§ 558.002(5), Fla. Stat. Furthermore, “ ‘Action’ means any civil action or arbitration proceeding for damages ... caused by an alleged construction defect, but does not include any administrative action’ or ahy civil action or- arbitration proceeding asserting a claim for , alleged- personal injuries arising out of an alleged construction defect.” § 558.002(1) (emphasis added). Based on its application only to construction defects and the explicit limitation included in the definition of an “action,” it is not clear that chapter 558, Florida Statutes, applies to the CGL policy -at issue in this ease at all.

Thus, the initial question that must be answered is whether the CGL policy covers the chapter 558, Florida Statutes, notices of claims at issue here, which appears to be a dispute involved in the federal litigation. Additionally, it is important to determine the scope of an insurance company’s duty to defend "under Florida law when there may be claims that are both within and beyond the coverage of the CGL policy.

These questions are not before us today and thus are not considered in the majority’s analysis, based on the limited certified question presented here. Instead, the United States Court of Appeals for the Eleventh Circuit has asked only for a very limited opinion on a limited specific legal issue in an otherwise highly factual case. The factual issues described above are beyond the question before this Court today and should instead be resolved in federal court based on Florida law. Therefore, in this sterile environment before us today, I concur with the majority’s conclusion.

PARIENTE, J.,

concurring in part and dissenting in part.

I agree that the chapter 558 process can be considered an “alternative dispute resolution proceeding.” However, I dissent from the majority’s narrow construction of the commercial general liability policy so as to relieve the insurer of its duty to defend the insured in the chapter 558 process absent the insurer’s consent to the insured’s participation in the mandatory presuit process. To the extent there is any ambiguity in the policy’s definition of “suit,” I would construe the policy language broadly in favor of coverage, ás our precedent directs. See, e.g., State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So.3d 566, 570 (Fla. 2011); Travelers Indem. Co. v. PCR Inc., 889 So.2d 779, 785-86 (Fla. 2004); State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla. 1998).

The majority reaches its conclusion that the chapter 558 process,is not a “civil proceeding" within the .policy’s definition of “suit” by discounting the purpose and procedures of chapter 558, Florida Statutes, as set forth by the Legislature. Every aspect of the chapter 558 process envisions active participation by the contractor and, therefore, its insurer if the terms of the applicable policy provide coverage. See § 658.004(13), Fla. Stat. (2012). For example, section 558.001, Florida Statutes (2012), states the Legislature’s finding “that it is beneficial to have an alternative method to resolve construction disputes that would reduce the need for litigation as well as protect the rights of property owners,” and this method “should provide the contractor, subcontractor, supplier, or design professional with an opportunity to resolve the claim without resort to further legal process.” Id. § 558.001.

Chapter 558 unquestionably creates a mandatory presuit procedure for construction defect claims by requiring the claimant to serve the insured with a notice of claim before filing a construction defect lawsuit. See id. § 558.004(1); majority op. at'278. As the majority recognizes and the United States Court of Appeals for the Eleventh Circuit emphasized, chapter 658 limits any construction defect -lawsuit to defects that have been properly identified in a chapter 558 notice of claim. See § 558.003, Fla. Stat. (2012); Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., 832 F.3d 1318, 1320 (11th Cir. 2016); majority op. at 277. Also, chapter 558 requires the insured to respond to the claimant,, stating that “the person who was served the notice ... must serve a written response to the claimant.” § 558.004(5), Fla. Stat. (2012) (emphasis added). Further, as the amici — National Association .of Home Builders, together with several other associations of- contractors and home-builders — explain and-the majority recognizes, section 558.004(15) provides, that, in the event of litigation following the chapter 558 process, the trial court may order sanctions for a party’s failure to provide discovery requested- during the chapter 558 process. Br. of Amici Curiae Builders at 10; majority' op. at -277 - 78. Thus, the presuit process-delineated by chapter 558 is a mandatory prerequisite to construction defect litigation.

Precedent also directs that we interpret broadly the term “civil proceeding,” as used in the policy’s definition of “suit.” In Raymond James Financial Services, Inc. v. Phillips, 126 So.3d 186 (Fla. 2013), this Court stated, “Whereas civil actions may be limited to court cases, a proceeding is clearly broader in scope.” Id. at 191. Under the definition of “civil proceeding” that this Court noted in Raymond James and the majority dismisses, the chapter 558 process is the first of a “series of steps in the enforcement, adjudication, or administration of rights, remedies, laws, or regulations.” Id. at 190 n.4 (quoting Merriam-Webster’s Dictionary of Law 387 (1996)); see majority op. at 277 - 78. Therefore, the chapter 558 process is a “civil proceeding” within the policy’s definition of “suit.”

The majority also erroneously relies, at least in part, on the definition of “civil proceeding” from the Tenth Edition of Black’s Law Dictionary, which suggests an adjudication requirement. Majority op. at 278. The federal district court also found this definition controlling. See Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., 124 F.Supp.3d 1272, 1279 (S.D. Fla. 2015). However, this definition did not exist when the policy language, which is controlling in this case, was written or when the claims in this case arose. Therefore, the definition of “civil proceeding” from the Tenth Edition of Black’s Law Dictionary is not controlling or indicative of the “plain language of the polic[y] as bargained for by the parties.” Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000). Rather, at the time the policy was written and bargained for by the parties, Black’s Law Dictionary had no definition for the term “civil proceeding.”

Further, the policy does not define “civil proceeding” as an independent term, although certainly the insurer, as the drafter of the policy, could have further defined the policy terms to be more specific and provide more clarity. Instead, the policy’s definition -of “suit” broadly “includes” other forms of proceedings. The term “include indicates that what is to follow is only part of a greater whole.” Childers v. State, 936 So.2d 585, 597 (Fla. 1st DCA 2006); see Alligator Enters., Inc. v. Gen. Agent’s Inc. Co. 773 So.2d 94, 95 (Fla. 5th DCA 2000). Thus, the term “includes,” as used in the policy’s definition of “suit,” broadens the scope of the insurer’s duty to defend.

While I agree with the majority that the chapter 558 process can certainly be considered an “alternative dispute resolution proceeding” under subparagraph (b) of the policy’s definition of “suit,” this alternative provision does not provide any certain benefit to the insured. Subparagraph (b) requires the insurer to consent to the insured participating in the proceeding for the duty to defend to arise. Therefore, subparagraph (b) leaves the insured at the mercy of the insurer, who has complete power to decide if and when to participate in the mandatory chapter 558 process. So, if the insurer refuses to participate and defend the insured after receiving a chapter 558 notice of claim, the insured is left on its own to either defend itself or settle the claim, with any payments not covered by the policy.

As a result of the majority’s holding, as Amici Curiae Builders argue, an insured has an incentive to not participate in the chapter 558 process and instead opt out of the chapter 558 process in favor of subjecting itself to a lawsuit, which would undoubtedly constitute a “suit” that invokes the insurer’s duty to defend. Br. of Amici Curiae Builders at 8. Creating such disincentives undermines the Legislature’s intent in enacting chapter 558 to “reduce the need for litigation.” § 558.001, Fla. Stat. (2012); accord Br. of Amici Curiae Builders at 7-8.

The unfortunate result of an insurer not having a duty to defend the insured in the chapter 558 process is demonstrated by the convoluted facts in this case. The insurer, Crum & ' Forster Specialty Insurance Company (“C & F”), after receiving notice of several chapter 558 notices. of claim and initially refusing to defend the insured, Altman Contractors, Inc. (“ACI”), belatedly agreed to take part in defending the claim, despite maintaining that Sapphire’s notices of claim did not invoke its duty to defend ACI under the policy. Majority op. at 275.

To be clear, C & F did not refuse to defend ACI because part of Sapphire’s claim involved defects that required, repair. In fact, C <& F concedes that some of the defects noticed by Sapphire were within the policy’s coverage. Nor did C & F refuse to defend ACI based on lack of proper notice of Sapphire’s claims, despite the policy’s requirement that ACI make C & F “immediately” aware of any claims that may fall under the policy. In fact, if ACI had not given C & F notice of the claim, C & F may have had a legitimate basis for denying the claim based on prejudice.

Considering the terms within the policy’s definition of “suit,” coupled with Florida law requiring that ambiguous policy language be construed broadly in favor of providing coverage to the insured, I would answer' the certified question in the affirmative, holding that the chapter 558 process is a “civil proceeding” within the policy’s definition of “suit.”

LAWSON, J.,

concurring in part and dissenting in part.

I fully agree with the majority that the chapter 558 presuit process for resolving disputes over “construction defects” is not a “civil proceeding” within the meaning of this commercial general lines (“CGL”) policy, but disagree with the majority’s conclusion that the chapter 558 process fits the “alternative dispute resolution proceeding” portion of the policy definition of “suit,” primarily for reasons suggested by Justice Lewis’s concurring opinion.

It is axiomatic that when construing a contract, the “entire contract should be considered and provisions should not be considered in isolation,” Burlington & Rockenbach, P.A. v. Law Offices of E. Clay Parker, 160 So.3d 955, 958 (Fla. 5th DCA 2015), so that the court can “reach a contract interpretation consistent with reason, probability, and the practical aspect of the transaction between the parties,” id. (quoting Whitley v. Royal Trails Prop. Owners’ Ass’n, Inc., 910 So.2d 381, 383 (Fla. 5th DCA 2005)). As Justice Lewis explains in his concurring opinion, the CGL policy in this case covers personal injury and property damage claims, but not construction defect claims. Put simply, a CGL carrier does not insure the contractor’s performance or the quality of the contractor’s work. Consistent with the coverage extended in the contract, the parties agreed that the insurer would defend only covered “suits,” which the contract expressly defines as those “civil proeeed-ing[s],” “arbitration proceeding^],” and “other alternative dispute, resolution proceeding[s]” seeking “damages because of ‘bodily injury,’ ‘property damage’ or ‘personal and advertising injury1 to which this insurance applies.” The policy even reiterates that the insurer has “no duty to defend the insured against any ‘suit’ seeking damages ... to which this insurance does not apply.”

Although chapter 558 created a type of alternative dispute resolution process, it is a process for resolving construction defect claims “to which this [CGL] insurance [policy] does not apply.” As such, the process is not a “suit” as defined by the terms of the policy.

The majority’s contrary analysis on this issue focuses almost exclusively on the obvious,'that chapter 558 creates an alternative dispute process, and concludes-that the insurer had a duty to defend because the potential plaintiff sought' “damages,” while appearing' to overlook that the policy obligates the insurer to extend a defense only in alternative dispute resolution proceedings seeking covered damages. As a result, the majority misreads chapter 558 to force-place coverage that does not exist under the policy.

Of course, a property owner could always mix a covered claim in with its non-covered construction defect claims for which the statute requires notice. Here, for example, Altman claimed that sixteen of the roughly 800 identified defects caused some “property damage to the building.” But, even with that possibility, it would be inconsistent with “reason, probability, and the practical aspect of the transaction” to conclude that this policy language was intended by the parties to put the insurer on the hook for all legal costs incurred as a result of its insured’s participation in a statutory presuit mechanism for resolving construction defect claims not covered by its policy. Although that observation should end the inquiry, analyzing the precise policy language and the chapter 558 process yields three additional reasons why this court should conclude that the chapter 558 process is not an “alternative dispute resolution proceeding” for claiming covered “damages” within the meaning of this policy.

First, the chapter 558 process is not even a “proceeding” as that word is commonly understood. There is no third-party mediator or other official facilitating the process. The parties do not gather for mandatory negotiation. There is simply a notice given of construction defects, cooperation required in the exchange of information necessary to respond to the notice, and a response from the contractor as to whether the contractor will make repairs, offer to settle, or deny responsibility.

Second, the chapter 558 process does not even contain a mechanism for determining' “damages,” even for noncovered construction defects. Rather, the process is aimed at giving the contractor an opportunity to “repair” its work prior to being sued for damages (which, for a construction defect claim, would generally be the cost to the owner of repairing the defective work itself, using another contractor).

Finally, the statute makes clear that even if a chapter 558 notice includes a defect alleged to have caused damage covered by insurance, insurer participation is not intended. First, the statute provides that the chapter 558 notice “shall not constitute a claim for insurance purposes.” § 558.004(13), Fla. Stat. (2012). Then, the statute provides that if the contractor responds to the , notice with an offer to settle, the offer “will not obligate the [contractor’s] insurer[.]” § 558.004(5)(b)-(e), Fla, Stat. (2012), Finally, if the contractor believes that the chapter 558 notice includes .a defect that has caused damage covered by insurance, it is directed.to respond to the.claimant by giving notice that with respect to that part of the claim any “monetary payment, including insurance proceeds .... will be determined by the [contractor’s] insurer within 30 days after notification to the insurer by means of serving the claim, which service shall occur at the same time the claimant is notified of this settlement option.” § 558,004(5)(e), Fla. Stat. (2012) (emphasis added). In other words, the statute not only prohibits the claimant’s chapter 558 notice from acting as an insurance claim, but expressly directs the contractor to respond to the notice without involving its insurer and to send notice of any coyered claim only after it has analyzed the notice, exchanged information, and fashioned its response — at the end of the chapter 558 process. To me, this reflects the Legislature’s understanding that the singular type of claim for which it was establishing this process — a construction defect claim — does not generally involve insurance. And, in light of this understanding, the Legislature very carefully drafted the statute so as to exclude from the chapter 558 process secondary claims for personal injury or property damage caused by a construction defect (to which insurance would typically apply). Therefore, the majority construes the statute as applying to a type of claim that the plain language of the statute excludes from the chapter 558 process.

For these reasons, I conclude that .the notice and repair process set forth in chapter 558, Florida Statutes, is not a “suit” within the meaning of this CGL policy, and would answer “no” to the certified question.

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

      . In 2015, the Legislature amended section 558.001 as follows (additions underlined):
      The Legislature finds that it is beneficial to have an alternative method to resolve construction disputes that would reduce the need for litigation as well as protect the rights of property owners. An effective alternative dispute resolution mechanism in certain construction defect matters should involve the claimant filing a notice of claim with the contractor, subcontractor, supplier, or design professional that the claimant asserts is responsible for the defect, and should provide the contractor, subcontractor, supplier, or design professional, and the insurer of the contractor, subcontractor, supplier, or design professional, with an opportunity to resolve the claim through confidential settlement negotiations without resort to further legal process.
      Ch. 2015-165, § 1, Laws of Fla.

      .. In such case, the action may proceed only “on the unresolved portions of the claim.” § 558.004(6), Fla. Stat. (2012).

      . We do not address the policy’s definition of "suit” under subparagraph (a) because the chapter 558 process is clearly not an "arbitration proceeding."

      . Mediation is an alternative dispute resolution proceeding that is not adjudicative, and could contractually be made a condition precedent to bringing suit, but is not a civil proceeding as contemplated by the policy.

      . The associations that joined the National Association of Home Builders as Amici Curiae are the Construction Association of South Florida, South Florida Associated General Contractors, Leading Builders of America, and the Florida Homebuilders Association. For ease of reference, they are referred to as “Amici Curiae Builders.” ■


author: PER CURIAM.

text:
    IN RE: AMENDMENTS TO the FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS—FORM 12.961
    No. SC17-1947
    Supreme Court of Florida.
    [December 14, 2017]
   PER CURIAM.

Pursuant to the procedures approved by this Court in Amendments to the Florida Family Law Rules of Procedure and Family Law Forms, 810 So.2d 1, 13-14 (Fla. 2000), this Court .has internally reviewed the Florida Supreme ..Court Approved Family Law Forms and has determined that amendments to form 12.961 (Notice of Hearing on Motion for Contempt/Enforcement), are needed in light of the United States Supreme Court’s decision in Turner v. Rogers, 564 U.S. 431, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011), and the current provisions of Florida Family Law Rule of Procedure 12.615 (Civil Contempt in Support Matters). Input on these issues was received from the Advisory Workgroup on the Florida Supreme Court Approved Family Law Forms, which provided valuable assistance. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The amendments to form 12.961 add language to the form in order to clearly notify an alleged contemnor that his or her present ability to pay is a critical issue in the proceeding and that he or she will be provided an opportunity during the contempt hearing to respond to allegations and questions about his or her financial status. Additionally; to conform to current requirements under rule 12.615, the form is amended to advise the alleged contem-nor whether the proceedings will be recorded electronically or by a court reporter.

The amended form is adopted as set forth in the appendix to this opinion, 'fully engrossed and ready for use. The- form shall become effective immediately upon release of this opinion. The form may be accessed and downloaded from the Florida State Court’s website at http://www. flcourts.org/resources-and-services/court--improvement/problem-solving-courts/ family-courts/family-law-forms.stml. By adoption of the form, we express no opinion as to its correctness or applicability. We also direct that the amended form be published for comment. Interested persons shall have sixty days from the date of this opinion to file comments with the Court.

It is so ordered.

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

Appendix

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW

FORM 12.961

NOTICE OF HEARING ON MOTION FOR CONTEMPT/ENFORCEMENT

IN SUPPORT MATTERS (RULE 12.615)

(12/17)

When should this form be used?

Use this form anytime you have set a hearing on a Motion for Contempt/Enforcement, Florida Supreme Court Approved Family Law Form 12.960, for a support matter under rule 12.615, Florida Family Law Rules of Procedure. Before you fill out this form, you should coordinate a hearing time and date with the judge or hearing officer and the other party. If the Department of Revenue is a party to the case, you may need to schedule your hearing time with the attorney for the Department of Revenue.

If your case is to be heard by a child support enforcement hearing officer, the following information applies: A child support enforcement hearing officer is an attorney who has been appointed by administrative order of the court to take testimony and recommend decisions in cases involving the establishment, enforcement, and/or modification of child support, and the enforcement of alimony in conjunction with an ongoing child support arrearage order. If your case only involves issues pertaining to child support, you cannot object to the referral of your case to a hearing officer. If your case is going to be heard by a general magistrate, you should use Notice of Hearing Before General Magistrate, Florida Family Law Rules of Procedure Form 12.920(c).

This form should be typed or printed in black ink. After completing this form, you should file the original with the clerk of the circuit court in the county where your case was filed and keep a copy for your records.

IMPORTANT INFORMATION REGARDING E-FILING

The Florida Rules of Judicial Administration now require that all petitions, pleadings, and documents be filed electronically except in certain circumstances. Self-represented litigants may file petitions or other pleadings or documents electronically; however, they are not required to do so. If you choose to file your pleadings or other documents electronically, you must do so in accordance with Florida Rule of Judicial Administration 2.525, and you must follow the procedures of the judicial circuit in which you file. The rules and procedures should be carefully read and followed.

What should I do next?

A copy of this form must be personally served by a sheriff or private process server, mailed*, e-mailed*, or hand delivered to any other party(ies) in your case. *Please note that if notice is mailed, the court in certain circumstances may not consider mailing to be adequate notice. This is a technical area of the law; if you have any questions about it, you should consult a lawyer. For more information on personal service, see the instructions for Summons: Personal Service on an Individual, Florida Family Law Rules of Procedure Form 12.910(a).

IMPORTANT INFORMATION REGARDING E-SERVICE ELECTION

After the initial service of process of the petition or supplemental petition by the Sheriff or certified process server, the Florida Rules of Judicial Administration now require that all documents required or permitted to be served on the other party must be served by electronic mail (e-mail) except in certain circumstances. You must strictly comply with the format requirements set forth in the Rules of Judicial Administration. If you elect to participate in electronic service, which means serving or receiving pleadings by electronic mail (e-mail), or through the Florida Courts E-Filing Portal, you must review Florida Rule of Judicial Administration 2.516. You may find this rule at www.flcourts.org or through the link to the Rules of Judicial Administration provided under either Family Law Forms: Getting Started, or Rules of Court in the A-Z Topical Index. SELF-REPRESENTED LITIGANTS MAY SERVE DOCUMENTS BY EMAIL; HOWEVER, THEY ARE NOT REQUIRED TO DO SO. If a self-represented litigant elects to serve and receive documents by e-mail, the procedures must always be followed once the initial election is made.

To serve and receive documents by e-mail, you must designate your e-mail addresses by using the Designation of Current Mailing and E-mail Address, Florida Supreme Court Approved Family Law Form 12.915, and you must provide your e-mail address on each form on which your signature appears. Please CAREFULLY read the rules and instructions for: Certificate of Service (General), Florida Supreme Court Approved Family Law Form 12.914; Designation of Current Mailing and Email Address, Florida Supreme Court Approved Family Law Form 12.915; and Florida Rule of Judicial Administration 2.516. *

Where can I look for more information?

Before proceeding, you should read General Information for Self-Represented Litigants found at the beginning of these forms. For further information, see rules 12.615 and 12.941, Florida Family Law Rules of Procedure.

Special notes

An attorney who has been appointed by the court to serve as a child support enforcement hearing officer can also be- appointed to serve as a general magistrate. If your case involves only child support-issues, your case properly may be referred to a general magistrate acting as a child support enforcement hearing officer.

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that’ person must give you a copy of Disclosure from Nonlawyer, Florida Family Law, Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

      . All comments must be filed with the Court on or before February 12, 2018, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla, Admin. Order No. AOS Cl 3-7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court, Fla. Admin. Order No. AOSC17-27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


author: John A. Tomasino Clerk, Supreme Court

text:
    FLORIDA BOARD OF BAR EXAMINERS RE: K.P.S.
    CASE NO.: SC17-2146
    Supreme Court of Florida.
    DECEMBER 13, 2017
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and K.P.S. shall be admitted to The Florida Bar subject to the following conditions:

1. The Applicant’s license to practice law shall be placed on probation for a period of two years.

2. During the period of probation, the Applicant shall:

(a) abstain from the consumption of alcoholic beverages;

(b) abstain from the use of controled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc. (FLA);

(c) participate actively in the program offered by FLA by complying with the rehabilitation contract with that organization executed on November 11, 2016, and by extending the contract to cover the entire period of probation if necessary;

(d) submit to and pay for a minimum of eight (8) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by FLA;

(e) participate actively in Alcoholics/Narcotics Anonymous by attending meetings at such frequency as required by FLA; practice AA/NA principles in all of his affairs; and carry the AA/NA message to other individuals with a substance use disorder;

(f) attend attorney support meetings at least monthly, or at such greater frequency as required by FLA; and

(g) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to compliance with the conditions set forth in 2 (a), (b), (c), (d), (e), and (f) above. -

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule l-3.2(b), Rules Regulating The Florida Bar, and the costs thereof shall be paid by the Applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the Applicant shall reside within Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the Applicant relocates outside Florida during the probationary period for any reason, the Applicant shall surrender his license to practice law in Florida and if the Applicant fails to do so, the Supreme Court of Florida shall terminate his license.

5. The Applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution or the filing of any grievance or complaint related to the Applicant’s practice of law.

6. If the Applicant’s license is surrendered or terminated during the probationary period, the Applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause by The Florida Bar as to conduct of the Applicant committed during the period of probation may terminate the probation and subject the Applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately ’petition the Court for an order of suspension. The Applicant shall have ten days to file a response. If no. response is timely filed by the Applicant, then the Court shall issue an order suspending the Applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the Applicant.

8. If circumstances so warrant it, the Applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may. petition the Court for such an extension with a final decision to be made by the Court.

9. The Applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the Applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. The Applicant specifically consents to and authorizes the release of any and all materials in the Applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.

■ A True Copy

Test:

John A. Tomasino Clerk, Supreme Court


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: R.G.F.
    CASE NO.: SC17-2126
    Supreme Court of Florida.
    December 11, 2017
   Upon consideration of the Report and Recommendation filed by the 'Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and R.G.F. shall be admitted to The Florida Bar subject to the following conditions:.

1. The applicant’s license to practice law shall be placed on probation for a period of 1 year.

2. During the period of probation, the applicant shall:

(a) abstain from the consumption of alcoholic beverages;
(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc.;
(c) participate actively in the program offered by Florida Lawyers Assistance, Inc. during the entire probationary period by complying with the rehabilitation contract with that organization executed on April 5, 2017,- and by extending the contract to cover the entire period of probation if necessary;
(d) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening .tests determined to be appropriate by Florida Lawyers Assistance, Inc.;
(e) attend attorney support meetings at least monthly, or at such greater frequency as required by Florida Lawyers Assistance, Inc.;
(f) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2 (a), (b), (c), (d) and (e) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule .l-3.2(b) of .the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips,outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and: the filing of any grievance or complaint related1 to the applicant’s practice of law.

6. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to .The Florida Bar,

7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject-the applicant to all. available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response; If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures' commenced by The Florida Bar against the applicant.

8. .If circumstances so warrant 'it, the applicant and'The Florida Bar may . stipulate to an extension of the period of probation or The. Florida Bar may petition, the Court for such an extension with a final decision to be made by the Court.

9. The applicant acknowledges that, an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. The applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.

■ A True Copy

Test:

John A. Tomasino Clerk, Supreme Court