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    Pamela PERERA, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.
    No. SC08-1968.
    Supreme Court of Florida.
    May 6, 2010.

      Charles P. Schropp and Charles M. Schropp of Schropp Law Firm, P.A., Tampa, Florida, and Dennis G. Diecidue of The Diecidue Law Firm, P.A., Tampa, Florida, for Appellant.
    Jack R. Reiter and Jordan S. Kosches of Adorno and Yoss, LLP, Miami, Florida, for Appellee.
    Mark Hicks, Dinah Stein, and Brett C. Powell of Hicks, Porter, Ebenfeld and Stein, P.A., Miami, Florida, on behalf of Florida Insurance Council; George N. Me-ros, Jr. and Andy Bardos of GrayRobin-son, P.A., Tallahassee, Florida, and Robin S. Conrad, Washington, D.C., on behalf of Florida Justice Reform Institute and Chamber of Commerce of the United States of America; and William D. Horgan of Quintairos, Prieto, Wood and Boyer, P.A., Tallahassee, Florida, and Laura A. Foggan of Wiley, Rein and Fielding, LLP, Washington, D.C., on behalf of American Insurance Association and Complex Insurance Claims Litigation Association, as Am-ici Curiae.
   PARIENTE, J.

This case, pending in the federal court, involves interpretation of Florida law on third-party bad-faith causes of action in insurance cases. We have jurisdiction because the Eleventh Circuit Court of Appeals certified two questions, which are “determinative of the cause and fpr which there is no controlling precedent.” Art. V, § 3(b)(6), Fla. Const.

Although in this case the Eleventh Circuit has asked us broad questions regarding common law bad-faith cause of actions under Florida law, we have determined that, based on the unique circumstances of this case, the answer to whether the appellant, Pamela Perera (“Perera”), has an actionable bad-faith case against appellee, United States Fidelity and Guaranty Company (“USF & G”), allows for a more narrow framing of the question:

MAY A CAUSE OF ACTION FOR THIRD-PARTY BAD FAITH AGAINST AN INDEMNITY INSURER BE MAINTAINED WHEN THE INSURER’S ACTIONS WERE NOT A CAUSE OF THE DAMAGES TO THE INSURED OR WHEN THE INSURER’S ACTIONS NEVER RESULTED IN EXPOSURE TO LIABILITY IN EXCESS OF THE POLICY LIMITS OF THE INSURED’S POLICIES?

The jury in this case found that USF & G acted in bad faith and that finding is not controverted. The issue raised by the rephrased certified question is whether the insured sustained recoverable damages as the result of the bad faith. We answer the rephrased certified question in the negative because, based on the facts of this case, the insurer’s actions neither caused the damages claimed by the insured nor resulted in exposure of the insured to liability in excess of the policy limits of the insureds’ polices.

FACTS AND PROCEDURAL HISTORY

Perera’s husband, Mitchell Perera, an employee of Estes Express Lines Corporation (“Estes”), was crushed to death by a piece of equipment during the course of his employment. As the personal representative of his estate, Perera filed a wrongful death suit against Estes and specified named employees of Estes (“employees”) in Hillsborough County Circuit Court (“state trial court”).

At the time of Mitchell Perera’s death, Estes maintained three insurance policies: a commercial liability policy (insuring only the employees of Estes) issued by Cigna Property and Casualty Insurance Company (“Cigna”) with a limit of $1 million, subject to a $500,000 deductible; an excess worker’s compensation employer’s liability policy (insuring only Estes) issued by USF & G with a limit of $1 million after Estes’ self-insured retention of $350,000; and an umbrella excess liability policy (insuring both Estes and its employees) issued by the Chubb Group of Insurance Companies (“Chubb”) with a limit of $25 million. All three policies required Estes to provide its own defense.

After learning of Perera’s lawsuit, USF & G denied coverage, asserting that the intentional acts exclusion contained in the USF & G policy precluded coverage of Perera’s claim against Estes. In March 2001, Perera formally demanded $12 million to settle the case. About a week later, Perera, Estes, and the three insurance companies met to mediate the case. During mediation, when USF & G insisted on its coverage defense and refused to tender its policy limits of $1 million, USF & G was asked to leave the mediation. At mediation, Cigna offered $500,000 (representing the policy limits of $1 million minus Estes’ $500,000 deductible), Estes offered $750,000, and Chubb offered $1.25 million. However, the last demand from Perera was $8 million, and the case failed to settle at mediation.

In the months that followed, Chubb took an active role in handling the settlement negotiations. According to trial testimony and correspondence written by Chubb, after mediation Perera had demanded $8 million in total to settle the case and Chubb offered $3.5 million. There is some indication that USF & G was willing to participate in a settlement by contributing $100,000 but that it continued to rely on its coverage defense in declining to offer its policy limits. Then, in early August 2001, Perera demanded $7 million in total and Chubb offered $4.25 million for a global settlement to settle the entire case, provided that the right to seek indemnity, contribution, or reimbursement from USF & G be preserved.

In late August 2001, Perera, Estes, and its employees entered into a “Stipulation to Settle” for $10 million. The stipulation provided that Estes and its employees would pay $5 million and provide a written waiver of the workers’ compensation lien. Although not stated in the stipulation, the negotiated settlement provided that the $5 million would be paid as follows: $750,000 from Estes, $500,000 from Cigna, and $3.75 million from Chubb. The remaining $5 million was to be sought in a lawsuit against USF & G, which Estes agreed to either bring or assign to Perera. Perera agreed in the settlement not to execute or record the judgment pending resolution of the lawsuit against USF & G. Perera further agreed that she would issue a satisfaction of judgment at the conclusion of the lawsuit, even if the suit did not result in the recovery of any additional proceeds.

In accordance with the provisions in the stipulation, the state trial court held a limited evidentiary hearing for the purpose of determining that the stipulation was entered “in good faith” and that the amount of the settlement was reasonable. After finding that the settlement was in good faith and that the amount of the settlement was reasonable, the state trial court approved the stipulation. Pursuant to the terms of the stipulation, a final judgment was then entered in the amount of $10 million against Estes and its employees.

After the approval of the settlement and the entry of the judgment, Perera was paid $5 million total by Estes, Cigna, and Chubb, each in accordance with the amount previously agreed to as part of the settlement. Perera executed a release of any further claims against Chubb.

In March 2002, Perera, as Estes’ assign-ee, brought suit in the state trial court against USF & G for the remaining $5 million of the consent judgment, asserting two causes of action: breach of contract (seeking recovery of the $1 million policy limits) and bad faith (seeking recovery of the remaining balance). USF & G removed the case to federal court, after which the federal district court granted summary judgment in favor of Perera on the breach of contract claim, requiring USF & G to pay its policy limit of $1 million. USF & G has not challenged the decision regarding coverage and has paid $1 million, leaving $4 million of the consent judgment outstanding.

With regard to the bad-faith cause of action, the federal district court found that no bad-faith action existed because Estes still had over $21 million in insurance coverage from Chubb at the time of settlement. The district court entered summary judgment in favor of USF & G, holding that without an excess judgment there can be no cause of action for bad faith. Perera appealed the district court’s decision to the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit determined that the threshold factual issue of whether USF & G acted in bad faith held the potential to moot the case and remanded to the federal district court to have a jury consider that limited issue.

At trial in the federal district court, the jury instructions contained stipulated facts, including that the $10 million consent judgment was reasonable in amount. The jury was instructed that “[a]n insurance company acts in bad faith in failing to settle a claim when, under all of the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured with due regard for its interests.” The jury was given the following factors to evaluate in determining whether USF & G acted in bad faith: (1) “the efforts taken by USF & G to resolve the coverage dispute promptly or in such a way as to limit any potential prejudice to Estes”; (2) “the substance of the coverage dispute or the weight of legal authority on the coverage issue that existed at the time of the dispute”; (3) “USF & G’s diligence and thoroughness in investigating the facts specifically pertinent to coverage”; and (4) “efforts made by USF & G to settle the liability claims in the face of the coverage dispute.” The jury was instructed that coverage had been determined to exist, but that factor was not controlling on the question of bad faith. However, with regard to the issue of damages, the jury was instructed that should it find USF & G liable for bad faith, “the issue of any damages will be decided at a later date.” The jury found that USF & G acted in bad faith.

After the case returned to the Eleventh Circuit, the Eleventh Circuit agreed with the federal district court that there was no excess judgment against the insured because, as of the time the settlement agreement was negotiated, Estes had $1 million in coverage from the Cigna policy, $1 million in coverage from USF & G’s policy, and $25 million from the Chubb policy, but the judgment entered was for only $10 million. Perera, 544 F.3d at 1275-76. The Eleventh Circuit further reasoned that Estes was never exposed to liability in excess of its policy limits because any such exposure was covered by the Chubb insurance, which had limits of $25 million. Id. After determining that Estes faced no liability above its existing policy limits (and accordingly no excess judgment), the Eleventh Circuit stated that it was not clear whether an excess judgment is a necessary part of a claim for bad faith under Florida law. Id. at 1276.

The Eleventh Circuit then noted that USF & G made an alternative argument that even if an excess judgment is not required, Perera’s bad-faith claim was barred because the insured was never exposed to liability in excess of the limits of the policies. Id. at 1277. The court considered Perera’s sole argument on this point, which was that Estes was required to advance sums for which it would not otherwise have been liable in order to persuade Chubb to contribute to the settlement, even though the $1 million USF & G limit had not been paid. Id. This argument was rejected for two reasons: first, the record was clear that Chubb was committed to settling and did not refuse to do so before USF & G’s $1 million was paid; and second, even if Estes had paid the $1 million, it would have imposed on Estes an exposure of only $1 million. Id. The Eleventh Circuit, after rejecting Perera’s arguments, concluded that “Estes was never exposed to liability in excess of the limits of its several polices, because any exposure above USF & G’s limits was covered by the Chubb coverage with limits of $25 million.” Id.

The Eleventh Circuit held that Perera had waived two arguments. First, it noted that Chubb, the excess carrier in the instant case, had not asserted a bad-faith claim against USF & G and did not assign any such claim to Perera, and Perera did not argue entitlement to assert any rights of Chubb by virtue of subrogation or otherwise. Id. at 1277 n. 2. Thus, the Eleventh Circuit held that any such argument was deemed abandoned. Id. Second, it noted that Perera could have raised a potential factual issue of liability for punitive damages, but that any such argument had been waived. Id. at 1277 n. 4.

ANALYSIS

We begin with a brief overview of the relevant and well-established bad-faith law in this State. We then discuss the types of circumstances that have been recognized by case law as giving rise to a third-party bad-faith cause of action. Finally, we examine the application of the law of bad faith to the facts of this case.

Review of Relevant Case Law

We start with the basic proposition that when an insurer is handling claims against its insured, it “has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.” Berges v. Infinity Ins. Co., 896 So.2d 665, 668 (Fla.2004) (quoting Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980)). This duty includes an obligation to settle “where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so.” Boston Old Colony Ins. Co., 386 So.2d at 785. Breach of this duty may give rise to a cause of action for bad faith against the insurer.

Although this case involves an indemnity policy, which requires the insured to undertake the defense of a claim, the law imposes the same obligations regarding settlement as set forth in Boston Old Colony. It was the emergence of standard form liability policies that gave rise to the common law cause of action for bad faith, see Laforet, 658 So.2d at 58; however, the duty of good faith in all respects, other than the duty to defend, also exists when the insurance policy is an indemnity policy. Thus, while an indemnity policy insurer’s duty of good faith does not encompass a duty to defend, it does include a duty of good faith when evaluating any settlement offers. That basic duty is not contested.

We now turn to an examination of the recognized circumstances under Florida case law that may be relevant to this case, in which an insured or the third-party claimant, either on its own behalf or as the insured’s assignee, may bring a common law third-party bad-faith claim against an insurer for damages sustained as a result of the insurer’s bad faith. Unless otherwise indicated, these circumstances apply regardless of whether the insurance policy at issue is an indemnity policy or a liability policy.

The first widely recognized circumstance is the classic bad-faith situation where an excess judgment is entered against the insured. Under Florida law, it is clear that an insured or a third-party claimant may bring a third-party bad-faith cause of action when an insurer has breached its duty of good faith and that breach results in an excess judgment being entered against its insured. Berges, 896 So.2d at 668.

An excess judgment, however, is not always a prerequisite to a bad-faith action. The second recognized circumstance involves stipulations known as Cunningham agreements under Florida law. These agreements involve the situation where there is not a previous excess judgment but an insurer and a third-party claimant enter into an agreement and stipulate to try the bad-faith issues first. The parties further stipulate that if no bad faith is found, the third-party claimant will settle for the policy limits, thus protecting the insured from exposure to an excess judgment. Cunningham agreements have been held by this Court to be the “functional equivalent” of an excess judgment. Cunningham, 680 So.2d at 182. This Court has explained:

In Cunningham, we simply approved a procedure in which the parties could avoid the time and expense of going through a trial to obtain a final judgment. In following that procedure, the parties agree and the courts recognize that a stipulated final judgment has the same force and effect as a final judgment reached through the usual judicial labor of a trial when the parties agree that it shall.

United Servs. Auto. Ass’n v. Jennings, 731 So.2d 1258, 1260 (Fla.1999). Under a Cunningham agreement, the insurer’s actions protect the insured against an excess judgment.

A third recognized circumstance also involves a settlement agreement but one that is entered into between the insured and the third-party claimant. The opportunity for a settlement without the agreement of the insurer traditionally has occurred where an insurer breaches its duty to defend, leaving the insured “to its own devices” to settle the case or proceed to trial. In those circumstances, the insured is left unprotected and may enter into a reasonable settlement agreement with the third-party claimant and consent to an adverse judgment for the policy limits that is collectable only against the insurer. Coblentz v. Am. Surety Co. of N.Y., 416 F.2d 1059, 1063 (5th Cir.1969); Steil v. Fla. Physicians’ Ins. Reciprocal, 448 So.2d 589, 591 (Fla. 2d DCA 1984) (“By refusing to defend Steil’s claim, the carrier left Walker to his own devices to protect himself in the best way possible.”); see also Chomat v. N. Ins. Co. of N.Y., 919 So.2d 535, 537 (Fla. 3d DCA 2006); Gallagher v. Dupont, 918 So.2d 342, 348 (Fla. 5th DCA 2005). These agreements are known as Coblentz agreements, based on the United States Fifth Circuit Court of Appeals case.

Florida courts have also extended the reasoning of Coblentz to allow agreements by the insured to a judgment in excess of the policy limits against an insurer who wrongfully refuses to defend and acts in bad faith. See Shook v. Allstate Ins. Co., 498 So.2d 498 (Fla. 4th DCA 1986). No Florida case, however, has reached the issue of whether and under what circumstances a Coblentz agreement is valid and enforceable when an indemnity policy that does not include the duty to defend is involved. Cf. U.S. Fire Ins. Co. v. Hayden Bonded Storage Co., 930 So.2d 686, 690 (Fla. 4th DCA 2006) (recognizing an issue of whether a Coblentz agreement may be enforced when there is no duty to defend but deciding that the issue was moot because the insurer did not breach its duty to indemnify). Implicit in these decisions is a recognition that the insured would not have entered into the consent judgment but for the bad faith of the insurer and that the insured would otherwise have been exposed to personal liability as a result of the insured being left to “its own devices.”

A fourth recognized circumstance involves a claim not of the insured or the third-party claimant, but of the excess carrier, which may bring a bad-faith claim against a primary insurer by virtue of equitable subrogation under certain circumstances where the primary insurer has not acted in good faith. Under the doctrine of equitable subrogation, an excess insurer has the right to “maintain a cause of action ... for damages resulting from the primary carrier’s bad faith refusal to settle the claim against their common insured.” U.S. Fire Ins. Co. v. Morrison Assurance Co., 600 So.2d 1147, 1151 (Fla. 1st DCA 1992) (citing Ranger Ins. Co. v. Traveler’s Indem. Co., 389 So.2d 272 (Fla. 1st DCA 1980)).

The reasoning of the equitable sub-rogation cases is that the primary insurer is “held responsible to the excess insurer for improper failure to settle, since the position of the latter is analogous to that of the insured when only one insurer is involved.” Id. In other words, the excess insurer “stands in the shoes of the insured,” to whom the primary insurer directly owes a duty to act in good faith. U.S. Fire Ins. Co., 600 So.2d at 1151. Accordingly, when the primary insurer’s bad-faith refusal to settle causes the excess insurer to pay an amount greater than it would have had to pay if the primary insurer had acted in good faith, the excess insurer is entitled to maintain a common law bad-faith claim against the primary insurer. See Ranger, 389 So.2d at 277. In this circumstance, there is an explicit requirement of a causal connection between the primary insurer’s bad-faith actions and the loss or damage suffered by the excess insurer. See id. at 276-77; see also Vigilant Ins. Co. v. Cont’l Cas. Co., 33 So.3d 734, 738 (Fla. 4th DCA 2010) (“[T]he insured, or the excess insurer standing in the shoes of the insured, is damaged because it has paid the judgment. It has paid money that it should not have been required to pay, absent the primary insurer’s bad faith.” (emphasis added)).

Although an excess judgment is not always a prerequisite to bringing a bad-faith claim, the existence of a causal connection is a prerequisite-in other words, the claimed damages must be caused by the bad faith. These principles are further illustrated by the case of North American Van Lines v. Lexington Insurance Co., 678 So.2d 1325 (Fla. 4th DCA 1996), which involved indemnity policies. In North American, according to the allegations in the complaint, the insured claimed that both the primary insurer and the excess insurer failed to act in good faith in attempting to settle the claim against the insured.

The insured was covered by two insurance policies, one primary and one excess. Id. at 1327. Both policies were indemnity policies, which obligated the insured to handle all claims. Id. After an injured third party brought suit against the insured, the primary insurer repeatedly refused to tender its policy limits and the excess insurer also .refused, claiming that exhaustion of the primary insurer’s limits was a condition precedent to its liability. Id. at 1328. The primary insurer eventually tendered its policy limits, provided that the insured advance $1 million. Id. On the eve of trial, the injured third party made a settlement demand exceeding the primary insurer’s limits but within the excess insurer’s limits; however, the excess insurer still refused to authorize settlement. Id. The insured was faced with “near certainty of a large judgment against it, exceeding all available coverage” and was forced to contribute the balance of the funds necessary to settle the litigation, subject to a reservation' of its rights against its insurers — the total cost to the insured was $7 million. Id. The insured then brought suit against its insurers for claims of breach of contract, bad faith, and other claims. Id. The trial court held that “an excess judgment was a requirement for any action against an insurer arising from a refusal to settle” and dismissed the lawsuit in its entirety, including the breach of contract claims. Id.

On appeal, the Fourth District Court of Appeal reversed and reinstated all counts of the complaint, holding that under the facts of the case an excess judgment was not necessary to assert the causes of action alleged. Id. at 1327. The Fourth District reasoned that neither insurer could “arbitrarily reject a reasonable settlement.... If they arbitrarily rejected a reasonable settlement, they breached their policy provisions, entitling [the insured] to settle the case and to seek reimbursement.” Id. at 1332-33. The Fourth District concluded that “under the facts of this case an excess judgment is not necessary to assert the causes of action alleged,” id. at 1327, “because the insured has paid an obligation for which the insurers should have been liable, had they not breached the contract.” Id. at 1333. Accordingly, the circumstances in North American involve a situation where the insured alleged that both the primary and the excess insurer repeatedly failed to tender their limits, the settlement demand exceeded the primary insurer’s limits, and the insured was faced with “near certainty of a large judgment against it, exceeding all available coverage.” Id. at 1328. Further, the insured alleged it had paid funds to settle the case under an indemnity policy that it would not otherwise have had to expend because the insurer acted in bad faith by refusing to settle.

In focusing on the insurer’s bad-faith failure to settle, forcing a payment of funds that would not otherwise have been expended had the insurers acted in good faith, the reasoning of North American is analogous to an equitable subrogation claim brought by an excess insurer. However, in North American, as in the equitable subrogation cases, there must be a causal connection between the damages claimed and the insurer’s bad faith.

As can be seen under Florida law, an excess judgment is not always a prerequisite before a bad-faith case can be brought against the insurer. However, the damages claimed by the insured or its assignee must be caused by the insurer’s bad faith.

Application of Law to Facts

We next review whether Perera, as as-signee of Estes, can claim the $4 million remaining on the consent judgment as damages caused by USF & G’s bad faith. In our analysis, we review the application of bad-faith law to the facts of this case.

First, we begin with the classic bad-faith case involving a judgment in excess of the policy limits and conclude that in this case there is no excess judgment because the consent judgment was within the limits of all applicable policies. We reject Perera’s argument that the $4 million is an excess judgment because the amount is in excess of Estes’ primary policy limits. We have previously stated that “[a]n excess judgment is defined as the difference between all available insurance coverage and the amount of the verdict recovered by the injured party.” Jennings, 731 So.2d at 1259 n. 2 (citing McLeod v. Cont’l Ins. Co., 591 So.2d 621 (Fla.1992)). Clearly, Estes had multiple policies, including excess coverage, because it wanted to protect itself against liability for a verdict in excess of USF & G’s policy limits. Therefore, the classic bad-faith cause of action is not available to Perera as Estes’ assignee.

Second, this case does not involve a Cunningham agreement where the insurer protects the insured by agreeing to try the bad-faith issues first and stipulate to an amount of damages. In this case, USF & G did not participate in any such agreement, and Chubb agreed to the settlement but did not agree to pay $10 million contingent on a finding of bad faith.

Third, we address the potential applicability of Coblentz. Although Coblentz agreements have arisen in the context of liability policies, where there is a breach of the duty to defend, we do not reject the application of Coblentz to indemnity policies. Perera argues that under Florida law, an insured is not required to put its personal assets on the line to settle a case in which its insurer acts in bad faith; rather, Perera asserts, the insured may enter into a settlement that assigns to the plaintiff the insured’s rights against the insurer in exchange for a release from personal liability. As a general proposition, Perera is correct; however, it does not apply to the facts of this case.

In this case, the insured was not actually “left to its own devices” regarding settlement. The insured had in effect both an additional primary insurer through Cigna and excess insurance in the amount of $25 million through Chubb. At all times Cigna was willing to pay its policy limits and Chubb was willing to negotiate settlement from its excess insurance policy even without USF & G’s participation. In fact, Chubb took an active role in settlement negotiations, ultimately paying only $8.75 million of the $10 million consent judgment, far below its policy limits of $25 million.

We next address the applicability of equitable subrogation, where the excess carrier pays monies it would not otherwise have been obligated to pay if the primary insurer had acted in good faith. This type of claim, which may be assigned to a third-party claimant, is not applicable here. In this case, Chubb did not assign to Perera any potential cause of action it may have had against USF & G by virtue of equitable subrogation. In fact, under the terms of the agreement, Perera actually executed a release of liability of any further claims against Chubb.

Finally, we address whether the facts of this case are analogous to the facts in North American and conclude that the facts of this case are distinguishable. Here, Perera is not claiming Chubb acted in bad faith. In fact, Chubb actively engaged in settlement negotiations without requiring the involvement of USF & G. Further, the other primary insurer for Estes’ employees also remained willing to contribute its policy limits.

Unlike North American, the facts do not reveal a situation in which the insured faced the “near certainty of a large judgment against it, exceeding all available coverage.” To the contrary, the settlement demands made by Perera during the course of litigation to that point — ranging from $12 million demanded just before mediation in March 2001 to $7 million shortly before settlement in August 2001 — always exceeded the limits of the primary policies (Cigna’s $1 million limits and USF & G’s $1 million limits) and were always well below the limits of the combined insurance policies. There is absolutely no indication from this record that the case, had it gone to trial, would have resulted in a jury verdict in excess of the combined insurance policies.

This case is also unlike North American because Estes did not pay funds that it would not have had been obligated to pay had USF & G acted in good faith. No such damages have been claimed. Rather, Perera, as Estes’ assignee, is seeking part of an unpaid consent judgment as damages.

As our review of the case law demonstrates, there must be a causal connection between the damages claimed and the insurer’s bad faith. Perera appears to argue a causal connection by asserting that Estes and Chubb intended to reduce Chubb’s coverage in exchange for a waiver of the $1 million attachment point of Chubb’s policy. This, Perera claims, is a direct result of USF & G’s bad-faith refusal to tender its $1 million policy limits, by which USF & G created a “hole” in Estes’ coverage, leaving it with the limited options of either paying $900,000 out of pocket (representing the remainder of the USF & G policy since USF & G only offered $100,000) in order for Chubb to settle or allowing a “dangerous and deteriorating case to proceed to trial and judgment.” Thus, she argues, when Chubb agreed to waive the $1 million attachment point in exchange for a reduction in its policy limits, it was in Estes’ best interest to settle.

Perera’s argument fails because the record indicates that Chubb was ready to settle even if the $1 million attachment point was not waived. Chubb offered $1.25 million at mediation in March 2001, $3.5 million in the months following mediation, and $4.25 million in August 2001, just prior to when the parties entered into the settlement agreement. While at least one of Chubb’s settlement offers was a global settlement in which Chubb reserved its right to pursue USF & G for indemnity or contribution, there is no evidence in the record that any of these offers were contingent upon USF & G’s $1 million limits being exhausted. Nor was there evidence that the case was “dangerous and deteriorating” in the sense that Estes was exposed to liability in excess of the policy limits. Accordingly, the facts of this case do not support Perera’s argument.

Estes, as a business entity, purchased both primary and excess insurance policies to protect itself from personal liá-bility. Unquestionably, both the primary and excess carriers have obligations toward their insured to act in good faith in evaluating settlement opportunities and settling a case where, as the jury was instructed in this case — in conformity with Florida law — “under all of the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured with due regard for its interests.” Estes’ excess carrier, Chubb, and one of its primary carriers, Cigna, honored their obligations to their insured and negotiated in good faith. As found by the jury, USF & G did not.

However, in this case, regardless of whether USF & G should have promptly paid its policy limits, there is no causal connection between USF & G’s bad faith and the damages claimed. The following facts are important to the resolution of this question: there was a substantial excess policy protecting Estes, Chubb was willing to negotiate a settlement without contribution from USF & G, Estes did not face exposure to liability in excess of the combined policies, and Chubb did not choose to either bring a bad-faith claim against USF & G or assign its claim to Perera.

CONCLUSION

Based on the facts of this case, we conclude that USF & G’s actions did not cause Estes to sustain the claimed damages of $4 million or to be exposed to liability in excess of its policy limits. Accordingly, Perera, as Estes’ assignee, is not entitled to recover the unpaid portion of the consent judgment. We answer the rephrased certified question in the negative and return this case to the Eleventh Circuit.

It is so ordered.

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

POLSTON, J., concurs in result.

      . The two certified questions are:
      1. CAN A CAUSE OF ACTION FOR BAD FAITH AGAINST AN INSURER BE MAINTAINED WHEN THERE IS NOT AN EXCESS JUDGMENT AGAINST THE INSURED?
      2. EVEN IF AN EXCESS JUDGMENT IS NOT ALWAYS REQUIRED, CAN A CAUSE OF ACTION FOR BAD FAITH AGAINST AN INSURER BE MAINTAINED WHEN THE INSURER'S ACTIONS NEVER RESULTED IN INCREASED EXPOSURE ON THE PART OF THE INSURED TO LIABILITY IN EXCESS OF THE POLICY LIMITS OF INSURED'S POLICIES?

        Perera v. U.S. Fid. & Guar. Co., 544 F.3d 1271, 1276, 1279 (11th Cir.2008).

      . In setting forth the facts, we rely on the Eleventh Circuit's opinion as well as facts in the trial court record from the bad-faith case.

      . USF & G actually issued a reservation of rights letter but its position was later found by the magistrate judge in the federal case to be effectively a denial of coverage, not a reservation of rights.

      . There is absolutely no indication that this claim could possibly have been settled within the limits of the primary insurance policies.

      . In addition to paying $750,000 toward settlement, Estes also paid $609,317.78 in attorneys’ fees and costs (since it was obligated to provide its own defense as all of the policies were indemnity policies), $100,000 in worker's compensation indemnity to Perera, $5000 in medical payments, and $6,058.74 in expenses.

      . Although it appears that Perera claimed in the Eleventh Circuit that Estes paid money it would not otherwise have paid had USF & G acted in good faith, Perera is not seeking any such sums as damages, but rather is seeking as damages the $4 million unpaid portion of the consent judgment.
      In addition, the $750,000 paid by Estes as part of the consent judgment included the $500,000 deductible for the Cigna policy Estes was required to pay. There is some indication in the record that the remaining $250,000 was additional money paid by Estes in order to further settlement. Whether Estes was required to pay all or part of the $250,000 is not clear because it had a $350,000 self-insured retention under the USF & G policy, of which a certain amount had already been expended for defense costs. However, Perera is not claiming any portion of the $750,000 Estes paid as damages in the bad-faith action.

      . We do not intend to limit the types of bad-faith claims that may be brought in other cases to only the case law discussed in this opinion. We discuss the case law only to determine whether the principles from prior bad-faith case law may be relevant to the facts of this case.

      . See State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 58 (Fla.1995). In contrast, under liability policies, insurers undertake the obligation to defend. Id.

      . Section 624.155(l)(a), Florida Statutes (2009), sets forth additional grounds for bad faith, including unfair claims practices. These additional grounds are not relevant to this case and are thus not discussed further.

        . Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 182 (Fla.1994).

      . The Fourth District accepted the facts contained in the complaint as true because it was evaluating an order dismissing a complaint for failure to state a cause of action. Id. at 1327.

      . The Fourth District also opined, although it was not argued by the parties, that the case presented an “excess situation” because although the primary insurer actually tendered its policy limits, its delay required the insured to expend additional funds in defending the case. Id. at 1333 n. 4. “Therefore,” the court concluded, "in a very real sense, the failure of the insurance company to pay a reasonable settlement exposed the insured to expenses of settlement and defense in excess of the policy amounts.” Id. However, neither Estes nor Perera, as Estes’ assignee, claims that USF & G’s bad-faith refusal to settle required Estes to expend additional attorneys’ fees. Thus, that issue is not before us in answering the certified question and we do not reach it.

      . Had Chubb assigned a claim of equitable subrogation, Perera may have been able to bring a bad-faith claim based on damages sustained by Chubb in the amount of any difference between what Chubb actually paid and the amount it would have paid had USF & G settled in good faith.

      . Although there was the possibility of punitive damages had the case gone to trial, the Eleventh Circuit held this argument to be waived and therefore we do not consider it.

      . Chubb's policy provided that Chubb would not be obligated to pay anything until the primary insurers’ policy limits were exhausted.


source: Caselaw Access Project

author: POLSTON, J. CANADY, J.,

license: Public Domain

text:
    Harold GOLDBERG, et al., Petitioners, v. MERRILL LYNCH CREDIT CORPORATION, et al., Respondents.
    No. SC08-1360.
    Supreme Court of Florida.
    May 13, 2010.

      Keith A. Goldbaum of Friedman, Rosen-wasser and Goldbaum, P.A., Boca Raton, FL, Richard E. Shevitz and Vess A. Miller of Cohen and Malad, LLP, Indianapolis, IN, for Petitioners.
    Mark A. Brown and Joseph Hagedorn Lang, Jr. of Carlton Fields, P.A., Tampa, FL, and Michael K. Winston of Carlton Fields, P.A., West Palm Beach, FL, for Respondents.
    Lori S. Holcomb, Tallahassee, FL, on behalf of The Florida Bar, as Amicus Curiae.
   POLSTON, J.

Petitioners argue that the Fourth District Court of Appeal in Goldberg v. Merrill Lynch Credit Corp., 981 So.2d 550 (Fla. 4th DCA 2008), erred by affirming the dismissal of two separate class action suits on the basis that the Florida Supreme Court has exclusive jurisdiction to determine whether respondents’ actions constitute the unauthorized practice of law. Although we use different reasoning, we agree with the Fourth District that the Florida Constitution requires this Court exclusively to make that determination; therefore, the cases should be dismissed. See art. V, § 15, Fla. Const. (“The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.”); Dade-Commonwealth Title Ins. Co. v. N. Dade Bar Ass’n, 152 So.2d 723 (Fla.1963) (quashing a district court of appeal decision that permitted a bar association to seek an action against title companies declaring that they were engaging in the unauthorized practice of law and for in-junctive relief).

Petitioners’ class actions seek “to recover document preparation fees charged [by respondents] for services performed by clerical personnel in the processing of mortgage loans.” Goldberg, 981 So.2d at 551. The petitioners brought actions in the circuit courts for unjust enrichment and for money had and received. The respondents moved to dismiss the complaints for lack of subject matter jurisdiction or standing and for failure to state a cause of action. Among other things, the respondents argued that the circuit courts lacked jurisdiction to hear any claims relating to the unlicensed practice of law and that only The Florida Bar could prosecute such claims.

The circuit courts granted the motions to dismiss, ruling that only this Court has jurisdiction to hear any claim based on the unlicensed practice of law and that Florida does not recognize a private cause of action to recover fees based upon the unlicensed practice of law. The petitioners appealed to the Fourth District, where the appeals were consolidated.

On appeal, the Fourth District recognized that rule 10-7.1 of the Rules Regulating the Florida Bar, established by this Court, specifically provides that victims may bring private actions to recover fees and damages based on unlicensed practice. Id. The Fourth District, however, concluded that the rule was silent as to when such a suit may be brought and held that “a supreme court determination on the unauthorized practice of law [is] a prerequisite” to such suits. Id. at 552. The Fourth District affirmed the dismissals because the respondents had not previously been prosecuted for their conduct by The Florida Bar or disciplined by this Court. See id. at 551.

We do not address the merits of whether respondents’ actions constitute the unauthorized practice of law because it was not addressed in the district court opinion. We only address whether the class actions should go forward prior to a determination of the unauthorized practice of law being made by this Court.

Petitioners argue that this Court’s rules expressly provide that while a complaint for injunctive relief must be filed by The Florida Bar in this Court, nothing precludes a victim from bringing a private civil action against an unlicensed practitioner to recover fees and damages. We agree. Rule 10-7.1(d)(3) of the Rules Regulating the Florida Bar specifically states that “[njothing in this section shall preclude an individual from seeking redress through civil proceedings to recover fees or other damages.” Therefore, the petitioners have standing to seek restitution of any claimed damages and are not jurisdic-tionally barred from initiating a civil action for recovery of any damages caused by the unlicensed practice of law.

However, we agree with the Fourth District that the complaints should be dismissed for failure to state a cause of action. To state a cause of action for damages under any legal theory that arises from the unauthorized practice of law, we hold that the pleading must state that this Court has ruled that the specified conduct at issue constitutes the unauthorized practice of law. See generally Fla. R. Civ. P. 1.110(b) (“A pleading which sets forth a claim for relief ... must state a cause of action and shall contain ... a short and plain statement of the ultimate facts showing that the pleader, is entitled to relief. ... ”). Stated another way, a claimant must allege as an essential element of any cause of action premised on the unauthorized practice of law that this Court has ruled the activities are the unauthorized practice of law. See generally Fla. R. Civ. P. 1.110, comment (1967) (“The complaint must show a legal liability by stating the elements of a cause of action....”); Clark v. Boeing Co., 395 So.2d 1226, 1229 (Fla. 3d DCA 1981) (“Pleadings must contain ultimate facts supporting each element of the cause of action.”).

The rulings of this Court may have been by review, pursuant to rule 10-9.1(g) of the Rules Regulating the Florida Bar, of proposed advisory opinions from the Florida Bar Standing Committee on the Unlicensed Practice of Law. See, e.g., Fla. Bar re Advisory Opinion on Nonlawyer Representation in Sec. Arbitration, 696 So.2d 1178 (Fla.1997); Fla. Bar re Advisory Opinion—Activities of Comty. Ass’n Managers, 681 So.2d 1119 (Fla.1996); Fla. Bar re Advisory Opinion—Nonlawyer Preparation of Residential Leases Up to One Year in Duration, 602 So.2d 914 (Fla.1992). Or the Court may have determined that certain practices constitute the unlicensed practice of law through other actions filed by The Florida Bar. See, e.g., Fla. Bar v. Rapoport, 845 So.2d 874 (Fla.2003); Fla. Bar v. Catarcio, 709 So.2d 96 (Fla.1998).

For example, if the actions complained of have been ruled on by this Court, then a plaintiff may be able to state a cause of action with proper pleading, even though the defendant accused of the unauthorized practice of law has not been subject to a Florida Bar proceeding. However, a plaintiff will not be able to state a cause of action premised on the unauthorized practice of law on a case of first impression (where this Court has not ruled on the actions at issue). In those cases, the pleading may be dismissed without prejudice or the action may be stayed until a determination from this Court pursuant to the advisory opinion procedures of rule 10-9.1 or the complaint and injunctive relief procedures of rules 10-5, 10-6, and 10-7 of the Rules Regulating the Florida Bar. See generally E. Air Lines, Inc. v. Mobile Oil Corp., 403 F.Supp. 757 (S.D.Fla.1975) (granting a stay to permit regulatory agency to make a final determination of threshold questions arising under agency’s regulations and expertise); see also Fla. R. Civ. P. 1.140, comment (1967) (“In the event a motion to dismiss is granted, the unsuccessful party may seek leave of the court to file an amended pleading in which the defects of the dismissed pleading may be supplied by additional allegations.”).

Additionally, there may be cases in which this Court has previously determined that the conduct at issue is the practice of law, but the defendant believes its identity is relevant to the determination of whether the conduct is actually the unauthorized practice of law. See Fla. Bar re Advisory Opinion — Nonlawyer Preparation of & Representation of Landlord in Uncontested Residential Evictions, 627 So.2d 485 (Fla.1993) (stating that it was the unlicensed practice of law for a non-lawyer to draft and file the complaint and motion and obtain the final judgment and writ of possession but authorizing property managers to conduct these activities); Fla. Bar re Advisory Opinion HRS Nonlawyer Counselor, 518 So.2d 1270 (Fla.1988) (temporarily authorizing lay counselors from the Department of Health and Rehabilitative Services to engage in conduct that this Court had previously recognized as the practice of law). In such cases, the defendant is also free to seek a stay of the action in the circuit court while obtaining an advisory opinion from The Florida Bar or to seek a dismissal without prejudice.

We recognize that rule 10-9.1(c) of the Rules Regulating the Florida Bar currently states that “[n]o opinion shall be rendered with respect to any case or controversy pending in any court or tribunal in this jurisdiction,” which prohibits The Florida Bar Standing Committee on the Unlicensed Practice of Law from proceeding in the event the action is stayed pending a determination by this Court. We hereby suspend the rule in the circumstances described herein and direct The Florida Bar to propose rule changes according to this opinion.

Therefore, because petitioners failed to state causes of action as required herein, we approve the Fourth District’s decision to affirm the dismissals, without prejudice, and remand for proceedings consistent with this opinion.

It is so ordered.

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

CANADY, J., dissents with an opinion.

CANADY, J.,

dissenting.

From the grant of exclusive regulatory authority in article V, section 15, Florida Constitution, the majority unjustifiably derives and asserts a type of exclusive judicial authority that is sui generis. Neither the majority nor the respondents have identified any precedent in any other area of the law for the assertion of what amounts to exclusive issue-of-first-impression jurisdiction. In asserting this unique jurisdictional claim, the majority departs from the framework previously established under rule 10-7.1(d)(3) and rule 10 — 9.1(c) of the Rules Regulating the Florida Bar— a framework which acknowledges the dichotomy between the regulatory process and judicial proceedings in which private parties seek relief. I would quash the decision of the Fourth District Court of Appeal and remand for further proceedings on the merits of the plaintiffs’ claim of unauthorized practice. I therefore dissent.

      . We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

      . Of course, plaintiffs may obtain advisory opinions regarding identity issues as well.

      . To be clear, the Florida Bar shall issue a formal advisory opinion upon request of a party in the circumstances described herein.


author: CANADY, J.,

text:
    Gregory Keith CAPEHART, Petitioner(s), v. STATE of Florida, Respondent(s).
    No. SC10-275.
    Supreme Court of Florida.
    May 13, 2010.
   This appeal of the denial of appellant’s seventh amended initial motion to vacate judgments of conviction, which was transferred to this Court from the Second District Court of Appeal in case no. 2D08-5692, is hereby dismissed without prejudice and returned to the Circuit Court of the Sixth Judicial Circuit. The circuit court is hereby directed to conduct a status conference within thirty days of the date of this order for the purpose of determining the question of counsel for Gregory Capehart in the pending penalty phase proceeding and any other matters the court deems necessary or proper. The circuit court is also directed to proceed expeditiously, commensurate with due process considerations, in conducting the new penalty phase proceeding previously ordered by that court. In light of this order, all pending motions are denied as moot.

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

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

QUINCE, C.J., recused.

CANADY, J.,

dissenting.

I dissent from the decision to dismiss this appeal. I would proceed with consideration of the postconviction appeal as we did in Maharaj v. State, 778 So.2d 944 (Fla.2000), a case which was in a procedural posture similar to the procedural posture of this case.


author: COPE, J. COPE, J. SHEPHERD, J.,

text:
    Walter WIESENBERG, Appellant, v. COSTA CROCIERE, S.p.A., Appellee.
    No. 3D07-555.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 2010.
    Opinion Denying Rehearing and Granting Certification June 2, 2010.
    Michael Guilford; Philip D. Parrish, Miami, for appellant.
    McAlpin Conroy and Richard J. McA-pin and Gabriela M. Prado, Miami, for appellee.
    Before COPE, SHEPHERD and SUAREZ, JJ.
   COPE, J.

This is an appeal of an order dismissing Walter Wiesenberg’s complaint for personal injuries he sustained as a passenger on a cruise ship. We affirm the dismissal order on the theory that the forum selection clause in the cruise ticket is enforceable. The lawsuit of plaintiff Wiesenberg had to be filed in federal court.

I.

The trial court dismissed the case now before us on the theory that it was barred by res judicata. We respectfully disagree and conclude that there is no res judicata bar.

In December 2003, plaintiff Wiesenberg was a passenger on the Costa Crociere cruise ship Mediterránea. As alleged in his complaint, the plaintiff struck his leg on a misplaced lounge chair, suffering a puncture which eventually required surgery.

On November 8, 2004, the plaintiff filed a complaint against Costa in state court (“the state court action”). The plaintiff accomplished service of process.

On November 9, 2004, the plaintiff filed, but did not serve, a complaint against Cos-ta in federal court (“the 2004 federal action”). The plaintiff states that he filed two complaints because he did not have a copy of his ticket, and was unsure whether the ticket required the suit to be filed in federal court. Both cases were timely filed within the one-year statute of limitations contained in the cruise ticket.

Costa’s adjuster contacted the plaintiffs counsel and they discussed the plaintiffs claim. Plaintiffs counsel believed that they had agreed that all litigation would remain in abeyance while the parties attempted to resolve the claim. Various items of correspondence followed.

In March 2005, the federal district court dismissed the 2004 federal action because the plaintiff had not served the defendant within the 120 day period for service of process provided by Federal Rule of Civil Procedure 4(m). The plaintiff did not move for rehearing or file an appeal. Plaintiffs counsel states that he believed he would be allowed to reinstate the federal suit if settlement discussions proved unsuccessful. The case failed to settle.

In March 2006, the plaintiff filed a motion for relief from judgment under Federal Rule of Procedure 60, seeking relief from the' dismissal order. That motion was denied. The plaintiff did not appeal.

In June 2006, the plaintiff filed a new complaint for damages in federal court (“the 2006 federal action”). This 2006 action asserted the same claim that the plaintiff had asserted in his 2004 action.

The defendant moved to dismiss the action as being time-barred by the one-year statute of limitations contained in the cruise ticket. The plaintiff argued that Costa should be estopped from raising a limitations defense on account of the alleged agreement between the parties to hold litigation in abeyance while settlement negotiations took place. The federal district court concluded that the elements of estoppel were not met, and dismissed the action.

For present purposes, it is essential to read the terms of the dismissal order. During the proceedings, the federal district court had been made aware that the plaintiffs state court action was pending. The court was also told the plaintiff maintained that the forum selection clause contained in the cruise ticket was invalid. That forum selection clause provided that any suit against the cruise line had to be brought in the United States District Court for the Southern District of Florida.

The federal district court said:

Finally, Plaintiff argues that the forum provision in the carriage agreement is invalid. Whether the forum selection provision is valid is beside the point, however, because the only issue before the Court is the limitations defense. With good reason, Plaintiff does not contend that the one-year limitations period is improper. See Levick [v. Steiner Transocean Ltd.], 377 F.Supp.2d [1251] at 1255 [ (S.D.Fla.2005) ] (“a shortened one-year limitations period in a cruise ticket contract is permissible.”). If Plaintiff believes that the forum clause is invalid, then he can make that argument in his state court action; it is unavailing here.

Wiesenberg v. Costa Crociere, S.p.A, No. 06-60961-Civ-Seitz/McAliley, Order Granting Defendant’s Motion to Dismiss at 3 (S.D.Fla. Jan. 23, 2006) (emphasis added). The United States Court of Appeal for the Eleventh. Circuit affirmed. Weisenberg v. Costa Crociere, S.p.A., 258 Fed.Appx. 265 (11th Cir.2007).

II.

In the meantime, Costa moved to dismiss the state court action. Costa argued that the federal district court’s dismissal of the 2006 federal action on the basis of the statute of limitations was res judicata and compelled dismissal of the 2004 state court action. Costa argued that this result was compelled by this court’s decision in Carnival Corp. v. Middleton, 941 So.2d 421 (Fla. 3d DCA 2006), which in turn followed Allie v. Ionata, 503 So.2d 1237 (Fla.1987). The trial court accepted Costa’s argument and dismissed the action. The plaintiff has appealed. We conclude that the trial court erred in its ruling.

Costa argues that a dismissal based on the statute of limitations constitutes an adjudication on the merits for purposes of res judicata. The Florida Supreme Court in Allie stated the general rule that “[u]n-der the federal scheme ... a dismissal on statute of limitations grounds is considered a dismissal on the merits by the operation of the rule [Federal Rule of Civil Procedure 41(b) ].” 503 So.2d at 1241; Carnival Corp. v. Middleton, 941 So.2d at 424-25.

There is, however, an exception. “Unless otherwise specifically exempted, a dismissal constitutes adjudication on the merits.” Allie, 503 So.2d at 1242 (emphasis added). That exception is applicable here. The federal district court’s order dismissing the 2006 federal action expressly stated, “If Plaintiff believes that the forum clause is invalid, then he can make that argument in his state court action. ...” Order Granting Defendant’s Motion to Dismiss at 3. By this language the federal district court explicitly allowed the plaintiff to proceed with his 2004 state court action and argue his claim that the forum selection clause in the cruise ticket was invalid. No such circumstances were present in this court’s decision in Carnival Corp. v. Middleton. As the exception applies in this case, rather than the general rule, the action should not have been dismissed on res judicata grounds.

Costa makes the additional argument that when the plaintiff appealed the dismissal of the 2006 federal action to the Eleventh Circuit, he was required to raise in that appeal his claim that the forum selection clause in the cruise ticket was invalid. That argument is without merit. The federal district court’s ruling on that issue was favorable to the plaintiff, by allowing the plaintiff to proceed in state court. There is no reason for the plaintiff to appeal a ruling in his favor.

For all of these reasons, the trial court erred in dismissing the state court action on the ground of res judicata.

III.

We find it appropriate to affirm on other grounds. See Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999). During the pen-dency of this appeal, this court upheld the validity of a forum selection clause like the one involved in this case. Leslie v. Carnival Corp., 22 So.3d 561 (Fla. 3d DCA 2008), rehearing en banc denied, 22 So.3d 567 (Fla. 3d DCA 2009); Spivey-Ferguson v. Carnival Corp., 22 So.3d 566 (Fla. 3d DCA 2008), rehearing denied and question certified 22 So.3d 567 (Fla. 3d DCA 2009). We therefore affirm the dismissal order now before us.

Affirmed.

On Motion for Rehearing or Certification

COPE, J.

We deny the motion for rehearing but grant the motion for certification of a question of great public importance.

Plaintiff Wiesenberg argues that we should grant rehearing and remand the case to the trial court. The plaintiff argues that it was not established that the plaintiff ever received a ticket, or if he did, which form of ticket he received.

We cannot see that this argument was made below. In response to the defendant Costa’s motion to dismiss or for summary judgment, the plaintiff made no claim that he traveled without a ticket. Indeed, the summary judgment record contains a copy of the plaintiffs federal court complaint. In federal court, the plaintiff specifically alleged that Costa had delivered to the plaintiff “a contract ticket or contract of passenger carriage[.]”

The defendant Costa also filed a copy of the standard form ticket it provided to the plaintiff. In the trial court, the plaintiff did not challenge the authenticity or text of the ticket.

The plaintiff also argues that there remains a question whether the forum selection clause adequately communicated (a) the necessity to file suit in federal court, and (b) that in federal court there would be no jury trial. However, those are the issues which divided this court in its denial of rehearing en banc in Leslie v. Carnival Corp., 22 So.3d 567 (Fla. 3d DCA 2009). Compare id. at 574 (Shepherd, Gersten, Wells, Suarez, and Lagoa, JJ., concurring in denial of rehearing en banc) (“[Ujnder federal maritime law, the passengers in these cases received the notice to which they were legally entitled.... There is no requirement under general maritime law that ticket recipients be advised of any unstated ramification of those limitations.”), with id. at 585 (Cortiñas, Ramirez, Cope, Rothenberg, and Salter, JJ., dissenting from denial of rehearing en banc) (“[W]e would grant the motion for rehearing en banc and find the federal court portion of the Forum Clause at issue here is unenforceable as it operates to deprive appellants of their constitutional right to a jury trial without notice and without consent.”). For the stated reasons, we deny the motion for rehearing.

The forum selection clause in this case states, in part:

(19) CHOICE OF FORUM; NO ARREST
(b) For cruises which depart from, return to, or make any port call at a United States port, Passenger further agrees that any suit against CARRIER shall be filed exclusively in the United States District Court for the Southern District of Florida located in Broward County, Florida, and that any such suit shall be based exclusively upon the admiralty jurisdiction of the United States District Court.

The clause now before us differs somewhat from the clause construed in Leslie. In the clause now before us, all passenger suits must be brought in admiralty in the United States District Court for the Southern District of Florida. In Leslie the forum selection clause did not specify the basis for federal jurisdiction, so that a passenger was free to rely on diversity of citizenship (where it exists) as a basis of federal jurisdiction. The difference is that the Leslie clause required some passengers (those who cannot establish diversity of citizenship) to proceed on the admiralty side of the federal district court, whereas in the forum clause now before us, all passenger suits must proceed on the admiralty side of the federal district court.

As stated in our original opinion, we upheld the validity of the just-quoted forum selection clause on authority of Leslie. We certify that we have passed on a question of great public importance:

IS A FORUM SELECTION CLAUSE ENFORCEABLE IN CIRCUMSTANCES WHERE ITS EFFECT IS THAT PASSENGERS WAIVE THE RIGHT TO A JURY TRIAL BUT THE CLAUSE DOES NOT EXPRESSLY SO STATE?

Rehearing denied; question of great public importance certified.

SUAREZ, J., concurs.

SHEPHERD, J.,

concurring in part, dissenting in part.

I respectfully dissent on granting certification in this case. In my view, this is not a case of great public importance, or even great urgency. As with Leslie v. Carnival Corp. ., 22 So.3d 561 (Fla. 3d DCA 2008), rehearing en banc denied, 22 So.2d 567, the decision in this case accords with ancient concepts of freedom of contract, pursuant to which Mr. Wiesenberg and Costa Crociere have agreed the dispute between them will be resolved in a court which has existed for this purpose for more than 200 years. See Judiciary Act of 1789 Ch. 20 § 9, 1 Stat. 77 (1789); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 1-6 (4th ed.2004).

What constitutes a question of great public importance is not defined. However, we must be mindful that when the provision first appeared in the Florida Constitution in 1957, it was part of a revision and modernization of the Florida appellate structure prompted by the great number of cases reaching the Florida Supreme Court and the consequent delay in the administration of justice. Ansin v. Thurston, 101 So.2d 808, 810 (Fla.1958). Under this revision, the Florida Supreme Court became charged to serve as a supervisory body, heavily oriented toward the preservation of uniformity of principle and practice. Id. Concomitantly, review by the district courts was thereafter intended “in most instances” to be final and absolute.” Id. Undiscriminating certification of matters as being of great public importance thwarts this constitutional scheme. It also inhibits the salutary functioning of the courts of appeal of this state as legal laboratories.

The case before us is a garden variety personal injury ease with a contractual twist. As a practical matter, the clause in question affects a narrow class of Costa Crociere cruise ship customers — those with a dispute arising out of their cruise experience. Although the clause is chal-lengeable and remains so in courts outside our jurisdiction, there is no court which has reasoned to a result contrary to the one we have reached here, or in our more fulsomely reasoned decision, Leslie v. Carnival Corporation. Nor is there any reason to believe Mr. Wiesenberg will be mistreated or shortchanged by a judge of the United States District Court absent immediate intervention by our High Court.

This may be a case of some legal panache. However, in my opinion, it is not a case of great public importance. The former, of course, is not a basis for certification.

      . Costa disagrees with the plaintiffs interpretation of the parties’ agreement.

      . The opinion in the federal Eleventh Circuit apparently misspelled the plaintiffs name.

       The question is similar, but not identical to, the question that this court certified in Spivey-Ferguson v. Carnival Corp., 22 So.3d 566 (Fla. 3d DCA 2009). The question is worded differently because the clause is worded differently.

      . I concur in the majority's denial of the motion for rehearing.

      . Lest there be any confusion, see supra p. 2, the Leslie panel (and hence the en banc panel) did not have before it the question whether the contractual limitations in the cruise passenger's ticket were "reasonably communicated” to the passenger under federal maritime law. See Leslie, 22 So.3d at 562, n. 2 ("The passengers do not contest that this clause, which was referenced expressly in a boldfaced 'Important Notice to Guests' on the first page of the Ticket Contract, was ‘reasonably communicated’ to them as required by federal maritime law.”). The sole issue presented in Leslie, and the cases consolidated with Leslie for en banc consideration, was whether the forum selection clause was unenforceable because it deprived some Carnival Cruise Line passengers of an absolute right to have their case decided by a jury in the United States District Court. .

      . Although cast in the idiom of jury sanctity, I deduce this is Mr. Wiesenberg's true concern. However, analyses of empirical data from federal cases compiled by the Administrative Office of the United States Courts strongly suggest otherwise. See, e.g., Theodore Eisenberg, Judicial Decisionmaking in Federal Products Liability Cases, 1978-1997, 49 DePaul L.Rev. 323, 323 (1999) (“The striking difference in trial win rates between judge and jury trials continues. Plaintiffs prevail in over 40% of the judge trials and only about 30% of the jury trials.”); Carol J. DeFrances & Marika F.X. Litras, Civil Trial Cases and Verdicts in Large Counties, 1996, Bur. Justice Stats. BuL, Sept. 1999, at 1, 6 (“Plaintiffs were more likely to win in bench trial cases (62%) than in jury trial cases (49%).”); see also Thomas A. Eaton, et al., Another Brick in the Wall: An Empirical Look at Georgia Tort Litigation in the 1990s, 34 Ga. L.Rev. 1049, 1084 (2000). Moreover, Federal Rule of Civil Procedure 39(c) authorizes a claimant, such as Mr. Wiesenberg, to request a jury trial of his claim in admiralty, subject to the consent of Costa Crociere and the federal trial judge.


author: WHATLEY, Judge.

text:
    David H. TEDESCHI and Anneliese, Tedeschi, Petitioners, v. SURF SIDE TOWER CONDOMINIUM ASSOCIATION, INC., and Charles P. Schropp, Respondents.
    No. 2D09-4804.
    District Court of Appeal of Florida, Second District.
    March 24, 2010.

      Christopher Jason Sanders, Largo, for Petitioners.
    Richard A. Zacur of Zacur, Graham & Costis, P.A., St. Petersburg, for Respondent Surf Side Tower Condominium Association, Inc.
    Charles P. Schropp of Schropp Law Firm, P.A., Tampa, on behalf of Charles P. Schropp.
   WHATLEY, Judge.

David and Anneliese Tedeschi filed this petition for writ of certiorari seeking review of a nonfinal order requiring them to join all of the unit owners of a condominium association as indispensable parties to their declaratory action. This cause of action began when the Tedeschis filed suit against Surf Side Tower Condominium Association (“Surf Side”), asking the circuit court to determine their right to parking space number eighty-two in their condominium’s parking lot and also asking the court for compensation for the time period during which Surf Side used the parking space as a guest space. We conclude that the circuit court’s order requiring the Ted-eschis to bring the suit against all of the condominium owners departs from the essential requirements of the law and results in material injury for the remainder of the proceedings for which there is no adequate remedy on appeal, and we therefore grant their petition. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987) (holding that certiorari review of nonfinal orders is limited to orders that depart from the essential requirements of the law and result in material injury for the remainder of the proceedings for which there is no adequate remedy on appeal).

Essential Requirements of the Law

In their complaint, the Tedeschis allege that when they purchased their condominium in 1979, they were assigned parking space number eighty-two. In 1984, the Tedeschis purchased another parking space in the condominium’s covered garage, and in 1993, they received a letter from Surf Side informing them that parking space number eighty-two would be converted to a guest space'. Pursuant to a request by the Tedeschis, the president of Surf Side’s board of directors reassigned the parking space to the Tedeschis in Oe-tober 2005. However, at a subsequent board meeting, Surf Side decided that the assignment of the parking space back to the Tedeschis had been improper and on October 1, 2006, it once again designated the space as a guest parking space.

Surf Side and Schropp filed a motion for judgment on the pleadings, arguing that the Tedeschis were required to join all of the condominium unit owners in the suit because the unit owners were indispensable parties. The circuit court agreed and entered an order dismissing the Tedeschis’ complaint with leave to amend to add the indispensable parties. We conclude that this order departs from the essential requirements of the law.

In Graves v. Ciega Verde Condominium Ass’n, 703 So.2d 1109, 1111 (Fla. 2d DCA 1997), the appellant sued all the unit owners of a condominium as a defendant class with the association as the class representative. The complaint sought to foreclose a mechanic’s lien against the unit owners and also sought to recover damages for breach of contract against the association. Id. at 1110. This court held that the circuit court erred in finding that the appellant was required to serve all of the individual members of the class. Id. at 1111. This court noted that “an association can sue and be sued, and that by its very nature is appropriately sued as a class when the issues involve the common elements of the condominium property or common issues to each unit owner.” Id. at 1112.

Similarly, in Trintec Construction, Inc. v. Countryside Village Condominium Ass’n, 992 So.2d 277, 277-78 (Fla. 3d DCA 2008), the appellant filed a lien foreclosure complaint and lis pendens against a condominium association in a dispute pertaining to roof repairs it performed on the condominiums. The circuit court dismissed the complaint without prejudice based on its finding that the individual condominium owners were indispensable parties to the lien foreclosure action. Id. at 278. The Third District noted that, pursuant to Florida Rule of Civil Procedure 1.221, the association could bring an action against the appellant as a sole plaintiff on behalf of affected condominium owners. Id. at 280. Rule 1.221 provides that a condominium association can bring a cause of action

in its name on behalf of all association members concerning matters of common interest to the members, including, but not limited to: (1) the common property, area, or elements; (2) the roof or structural components of a building, or other improvements (in the case of homeowners’ associations, being specifically limited to those improvements for which the association is responsible); (3) mechanical, electrical, or plumbing elements serving a property or an improvement or building (in the case of homeowners’ associations, being specifically limited to those elements for which the association is responsible); (4) representations of the developer pertaining to any existing or proposed commonly used facility;.... If an association has the authority to maintain a class action under this rule, the association may be joined in an action as representative of that class with reference to litigation and disputes involving the matters for which the association could bring a class action under this rule. Nothing herein limits any statutory or common law right of any individual homeowner or unit owner, or class of such owners, to bring any action that may otherwise be available. An action under this rule shall not be subject to the requirements of rule 1.220.

In Trintec Construction, Inc., the Third District exercised its certiorari jurisdiction and held that the appellant could proceed against the association as the representative of all condominium owners and that it was not required to join the individual unit owners as indispensable parties. Id. at 282. The court reasoned that “[j]ust as the Association was empowered to contract for the roof work for the benefit of the unit owners, then, it seems that the Association is the logical entity to manage and defend the lawsuit relating to that work.” Id. at 280. The court also noted that the unit owners had the right to intervene in the lawsuit. Id.

The Fourth District has also addressed this issue in Four Jay’s Construction, Inc. v. Marina at Bluffs Condominium Ass’n, 846 So.2d 555, 556 (Fla. 4th DCA 2008), wherein the appellant filed suit against a condominium association alleging that the association breached a construction contract, pursuant to which the appellant had installed balcony additions to all of the condominium buildings. As the court did in Trintec Construction, Inc., the Fourth District relied on rule 1.221 in holding that the association could be sued as the representative of condominium unit owners in the action to resolve a controversy of common interest to all units — the structural improvements to common elements. Id. at 557; see also Cooley v. Pheasant Run at Rosemont Condo. Ass’n, 781 So.2d 1182, 1183-84 (Fla. 5th DCA 2001) (holding that, where appellant sued condominium association for injury occurring on common elements, the unit owners had “the right, but not the obligation, to intervene and defend” and that their participation was not up to the plaintiff, even though they were bound by any judgment in the plaintiffs favor).

We note that, pursuant to rule 1.221, Surf Side could bring a cause of action against the Tedeschis in its name on behalf of all association members concerning matters of common interest to the members, including the common property, area, or elements, which would include the parking space. Further, there has been no allegation that the outside parking space at issue has been paid for or assigned to another condominium owner, and therefore, the relief sought affects the common property of the association and not the property rights of another individual. Therefore, the Tedeschis may sue Surf Side as the representative of all condominium unit owners. As noted by the Tedeschis, the other unit owners have the right, but not the obligation, to intervene in the lawsuit.

In their motion and on appeal, Surf Side and Schropp rely on a Fourth District case that at first glance appears similar to the present one. In Stevens v. Tarpon Bay Moorings Homeowners Ass’n, 15 So.3d 753, 754 (Fla. 4th DCA 2009), two town-home owners sued their homeowners association, asking the court to issue an injunction directing that the two owners had a right to space on a community dock. In Stevens, the Fourth District held that the two owners should have joined all of the other townhome owners as parties. Id. It reasoned that the other owners were indispensable parties because, if the two owners were granted relief, such would affect the interest of all the other owners. Id. The Fourth District held as follows:

Here, the trial court ordered the Association to assign 10 feet of canal dock space to each plaintiff. All of that dock space had already been given to other owners, who paid construction costs for their interest, or as guest space open to all owners in the Community. Thus, in order to assign the 10-feet spaces to plaintiffs, the Association was required to take space paid for and given exclusively to other owners and award it to plaintiffs. Obviously, this cannot be carried out without affecting the interests of these other owners in the community.

Id. at 754-55.

The court in Stevens cited to Sheoah Highlands, Inc. v. Daugherty, 837 So.2d 579, 580 (Fla. 5th DCA 2003), in which the owner of a condominium unit brought suit against the condominium association, alleging that the association allowed five owners to build screened enclosures on the condominium’s common property. The circuit court entered an order requiring the association to remove two of the screened enclosures. Id.

In Sheoah Highlands, Inc., the Fifth District reversed the circuit court’s order because the order affected the property rights of condominium owners who were not parties to the litigation. Id. at 583. The court held that a circuit court “is without jurisdiction to issue an injunction which would interfere with the rights of those who are not parties to the action.” Id. We note that in both Sheoah Highlands, Inc. and Stevens, the orders affected the property of individual condominium owners. In Sheoah Highlands, Inc., the order required the association to remove screened enclosures, which were the property of their individual owners. Similarly, in Stevens, the circuit court order required the association to take dock space, which had been paid for and given to other town-home owners, and award it to the appellants.

As noted by the Tedeschis, those cases involving the interest of an association, as compared to a property owner’s individual and unique property interest as in Sheoah Highlands, Inc. and Stevens, have held that a plaintiff may bring suit against the association and is not required to include all individual members of the association. Here, the order affects a parking space which is the common property of Surf Side, and therefore, the Tedeschis could bring their suit against Surf Side as the representative of all the condominium unit owners. The circuit court departed from the essential requirements of the law by requiring the Tedeschis to include the more than eighty other members of the condominium association in their lawsuit over a parking space.

Material Injury for the Remainder of the Proceedings

The Tedeschis contend that they will suffer material injury for the remainder of the proceedings for which there is no adequate remedy on appeal, because the circuit court order requires them to file the lawsuit against over eighty additional parties. In Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649-50 (Fla. 2d DCA 1995), this court noted that where the issues to be resolved address procedures designed to avoid litigation, those issues can be reviewed by certiorari. For example, “an order dispensing with a statutorily mandated pre-suit procedure, which is a condition precedent to a legal proceeding,” is reviewable by certiorari “because the purpose of the presuit screening is to avoid the filing of the lawsuit in the first instance.” Id. at 649. In Parkway Bank, this court further noted that limited certiorari review was permitted to consider cases involving “the statutory procedures for amending a complaint to allege punitive damages because those safeguards cannot be remedied post-judgment.” Id.

In Trintec Construction, Inc., 992 So.2d at 280, the court concluded that “the cost and delay inherent in identifying, pleading against, and serving a multitude of owners (and then substituting a new owner for a predecessor during the pen-dency of the case as units are sold or otherwise transferred) would be substantial.” See also Mantis v. Hinckley, 547 So.2d 292, 293 (Fla. 4th DCA 1989) (con-eluding that circuit court erred in denying motion to dismiss where mortgagee failed to join a dissolution receiver as an indispensable party, and therefore, the petitioners established the circuit court departed from the essential requirements of law and there was a lack of an adequate remedy on appeal). But cf. Fresh Del Monte Produce, N.V. v. Chiquita Int’l, Ltd., 664 So.2d 263, 264 (Fla. 3d DCA 1995) (“[W]e decline to grant certiorari on the order denying petitioner’s motion to dismiss for failure to join an indispensable party and the order denying motion for abatement or stay of proceedings.”). Here, the circuit court’s order improperly requires the Ted-eschis to file their complaint against over eighty additional defendants, which would cause a material injury for the remainder of the proceedings for which there is no adequate remedy on appeal. Trintec Constr., Inc., 992 So.2d at 280.

Accordingly, we grant the Tedeschis’ petition for writ of certiorari and quash the order of the circuit court.

VILLANTI and WALLACE, JJ„ Concur.

      . Charles P. Schropp, as owner of a condominium at Surf Side, was permitted to intervene in the suit.