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June 9, 2017 by admin

Appeals — Certiorari — Insurance — Partial summary judgment holding automobile liability insurer liable, under supplemental payments provision of policy, for attorney’s fees judgment entered against its insureds in underlying personal injury litigation as result of rejection of injured party’s proposals for settlement by attorney assigned by insurer to defend its insureds is non-final, nonappealable order where interrelated count was still pending in trial court

42
Fla. L. Weekly D1287b
Top of Form

Appeals
— Certiorari — Insurance — Partial summary judgment holding automobile
liability insurer liable, under supplemental payments provision of policy, for
attorney’s fees judgment entered against its insureds in underlying personal
injury litigation as result of rejection of injured party’s proposals for
settlement by attorney assigned by insurer to defend its insureds is non-final,
nonappealable order where interrelated count was still pending in trial court
— Bad faith claim against insurer which was still pending in trial court was
interrelated, as both it and insureds’ claims for coverage of attorney’s fees
judgment sounded in contract — However, partial summary judgment amounted to
departure from essential requirements of law because it impermissibly
authorized execution before entry of final appealable judgment

GOVERNMENT EMPLOYEES INSURANCE
COMPANY, Appellant, v. ELIZABETH ARREOLA and MARIA DE ARREOLA, GEICO GENERAL
INSURANCE COMPANY, and KIMBERLY LEE, Appellees. 2nd District. Case No.
2D16-2831. Opinion filed June 2, 2017. Appeal from the Circuit Court for
Hillsborough County; Mark R. Wolfe, Judge. Counsel: B. Richard Young, Amanda L.
Kidd, Stephanie A. McQueen, and Joshua J. Hartley of Young, Bill, Boles, Palmer
& Duke, P.A., Pensacola, for Appellant. Charles M. Schropp and Charles P.
Schropp of Schropp Law Firm, P.A., Tampa; and Dennis G. Diecidue of The
Diecidue Law Firm, P.A., Tampa, for Appellees Elizabeth Arreola and Maria De
Arreola. No appearance for remaining Appellees.

(CASE, JAMES R., Associate Senior
Judge.) Government Employees Insurance Company (Geico) appeals the partial
summary judgment ruling that it was required to pay an attorney’s fee judgment
entered against Elizabeth Arreola and Maria De Arreola (the Arreolas) under the
supplemental payments provision of the Arreolas’ policy. We decline to address
Geico’s arguments on appeal because the partial summary judgment is a nonfinal,
nonappealable order. However, because the partial summary judgment
impermissibly authorized execution before the entry of a final judgment, we
convert the appeal into a petition for writ of certiorari and quash the order
on review.

Elizabeth Arreola was driving a
vehicle owned by Maria De Arreola when she was involved in an accident with
another vehicle. The driver of the other vehicle filed a personal injury action
against the Arreolas. Pursuant to the Arreolas’ policy, Geico defended the suit
and assigned a salaried attorney employed by Geico. The policy gave Geico the
right to control the defense. During the litigation, the driver served $25,000
proposals for settlement on both Elizabeth and Maria De Arreola. Geico’s
attorney did not accept the proposals and allowed them to expire. Following a
jury trial, the driver obtained a verdict which resulted in a judgment against
the Arreolas for $80,428.32. The driver also obtained a judgment for attorney’s
fees against the Arreolas for $121,000 pursuant to the proposal for settlement
statute. See § 768.79, Fla. Stat. (2014).

The Arreolas filed suit against
Geico. Their complaint alleged that Geico acted in bad faith and breached its
fiduciary duty in handling the claim against the Arreolas, that the attorney
assigned to the case by Geico was professionally negligent, and that Geico was
responsible for such negligence under the doctrine of respondeat superior.

The Arreolas moved for summary
judgment as to the attorney’s fee judgment entered against them, arguing that
Geico was required to pay for these fees under the additional payments
provision of the Arreolas’ policy — a theory of liability that was not alleged
in the complaint. The trial court granted the motion and entered the partial
summary judgment, finding that Geico was liable for the attorney’s fee judgment
under the supplemental payments provision in the Arreola’s policy. The judgment
also let execution issue.

Geico timely appealed the partial
judgment, arguing that the trial court erred in determining that it was liable
for the attorney’s fees assessed against the Arreolas. This court issued an
order to show cause as to why this appeal should not be dismissed as from a
nonfinal, nonappealable order.

Both parties insist that this court
has jurisdiction over the final judgment. They insist that the judgment was
final in name and form and that it authorized execution. They further argue
that the breach of contract claim is separate and distinct from the bad faith
claim and that the two claims could be tried independently of one another. In
support of this, they allege that the claims are based on separate facts and
issues: the bad faith claim requires a determination that under the totality of
the circumstances Geico acted in bad faith in handling the claim, while the
breach of contract claim simply requires the interpretation of the policy.

We disagree that the judgment is an
appealable partial final judgment. Florida Rule of Appellate Procedure 9.110(k)
provides:

Except as
otherwise provided herein, partial final judgments are reviewable either on
appeal from the partial final judgment or on appeal from the final judgment in
the entire case. A partial final judgment, other than one that disposes of an
entire case as to any party, is one that disposes of a separate and distinct
cause of action that is not interdependent with other pleaded claims. If a
partial final judgment totally disposes of an entire case as to any party, it
must be appealed within 30 days of rendition.

However, “not all partial judgments
are immediately appealable.” Hallock v. Holiday Isle Resort & Marina,
Inc.
, 885 So. 2d 459, 461 (Fla. 3d DCA 2004). “[P]iecemeal appeals will not
be permitted where claims are interrelated and involve the same transaction and
the same parties remain in the suit.” Jensen v. Whetstine, 985 So. 2d
1218, 1220 (Fla. 1st DCA 2008) (quoting S.L.T. Warehouse Co. v. Webb,
304 So. 2d 97, 99 (Fla. 1974)). This court considers three factors in
determining whether a partial judgment may be appealed under rule 9.110(k):

(1) Could
the cause of action disposed of by the partial summary judgment be maintained
independently of the other remaining causes of action? (2) Were one or more
parties removed from the action when the partial summary judgment was entered?
(3) Are the counts separately disposed of based on the same or different facts?

Universal Underwriters Ins. Co. v.
Stathopoulos
, 113 So. 3d 957, 959 (Fla. 2d DCA
2013) (quoting Dahly v. Dep’t of Children & Family Servs., 876 So.
2d 1245, 1248 (Fla. 2d DCA 2004)). The second factor does not apply to this
case. See id. at 960 n.2. Further,

[a]n analysis of “interdependence” requires the court to
look primarily to the facts upon which the claims are based. If the claims
arise out of the same incident, the order dismissing some, but not all, of the
counts will not constitute a final appeal, even if the counts involve separate
and severable legal theories.

Biasetti v. Palm Beach Blood Bank,
Inc.
, 654 So. 2d 237, 238 (Fla. 4th DCA
1995).

As a threshold matter we note that
the partial judgment did not dispose of any claims pleaded in the complaint.
The Arreolas’ claim that Geico was liable for the attorney’s fee judgment under
the supplemental payments provision was first made in their motion for summary
judgment. Moreover, this claim is interdependent with at least the bad faith
claim which is still pending in the trial court. While the bad faith claim may
require proof of additional facts, both claims sound in contract, see Am.
Vehicle Ins. Co. v. Goheagan
, 35 So. 3d 1001, 1003 (Fla. 4th DCA 2010) (“In
Florida a bad faith claim is an action ex contractu.”), seek recovery
for overlapping damages (the attorney’s fee judgment), and arise from Geico’s
handling of a claim made against the Arreolas. Just because the breach of
contract claim centers around a disputed issue of law and the bad faith claim
focuses on disputed facts does not render the claims independent of one
another. See Pellegrino ex. rel Pellegrino v. Horwitz, 642 So. 2d
124, 126 (Fla. 4th DCA 1994) (“[P]leading or proving differing legal theories
does not establish that the counts are separate and distinct for the purpose of
appealability where the counts arise from a set of common facts.”). This is
illustrated by the fact that the pending bad faith claim has the potential of
mooting the issue on appeal. That is, if it is determined that Geico handled
the claim in bad faith, the Arreolas will be able to recover for the attorney’s
fee judgment entered against them regardless of whether it was covered by the
supplemental payments provision. See Cont’l Ins. Co. v. Jones,
592 So. 2d 240, 241 (Fla. 1992) (“[D]amages recoverable in a first-party bad
faith suit under section 624.155, Florida Statutes (1989), are those damages
which are the natural, proximate, probable, or direct consequence of the
insurer’s bad faith.”).

Accordingly, the partial summary
judgment is a nonfinal, nonappealable order. But this does not end our
analysis. Under Florida Rule of Appellate Procedure 9.040(c), “[i]f a party
seeks an improper remedy, the cause shall be treated as if the proper remedy
had been sought; provided that it shall not be the responsibility of the court
to seek the proper remedy.” In its response to this court’s order to show
cause, Geico raised the alternative argument that this court should exercise
its certiorari jurisdiction to quash the partial judgment because it authorizes
execution prior to the entry of a final appealable judgment. We agree.

Before an appellate court can
exercise its certiorari jurisdiction, “[a] petitioner must establish (1) a
departure from the essential requirements of the law, (2) resulting in material
injury for the remainder of the trial (3) that cannot be corrected on
postjudgment appeal.” Parkway Bank v. Fort Myers Armature Works, Inc.,
658 So. 2d 646, 648 (Fla. 2d DCA 1995). The latter two requirements are
jurisdictional. Id. at 649. Geico has satisfied the jurisdictional
prongs in this case because the partial judgment subjects it “to execution at a
time when it has no appellate remedy and therefore cannot protect its assets by
filing a supersedeas bond.” E. Ave., LLC v. Insignia Bank, 136 So. 3d
659, 665 (Fla. 2d DCA 2014). Such an order also constitutes a departure from
the essential requirements of law. See id. (reasoning that
“[p]ermitting execution prior to completion of the litigation” is an
“impropriety exceed[ing] the level of mere legal error”). Accordingly, we
convert this appeal to a petition for writ of certiorari, grant the petition,
and quash the summary judgment under review.

Petition for writ of certiorari
granted; judgment quashed. (SLEET and LUCAS, JJ., Concur.)

* * *

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