41
Fla. L. Weekly D2660aTop of Form

Appeals
— Non-final orders — Order denying Citizens Property Insurance Corporation’s
motion to dismiss and/or strike two counts of complaint and abating those
counts until coverage or extent of liability are determined is non-final,
non-appealable order — Record does not support contention that trial court’s
order was one determining as matter of law that sovereign immunity was not
available — Appeal dismissed

CITIZENS
PROPERTY INSURANCE CORP., Appellant, vs. RAFAELA SOSA, Appellee. 3rd District.
Case No. 3D15-2901. L.T. Case No. 15-16231. Opinion filed November 30, 2016. An
Appeal from a non-final order from the Circuit Court for Miami-Dade County,
Migna Sanchez-Llorens, Judge. Counsel: Methe & Rockenbach and Kara Berard
Rockenbach, Lauren J. Smith, and Kristi Bergemann Rothell (West Palm Beach),
for appellant. Perry & Neblett and David Avellar Neblett and John A. Wynn,
for appellee.

(Before
SUAREZ, C.J., and LAGOA and SALTER, JJ.)

ON
MOTION TO DISMISS

(LAGOA,
J.) Appellee, Rafaela Sosa (“Sosa”), moves to dismiss the appeal of a non-final
order denying Citizens Property Insurance Corporation’s (“Citizens”) motion to
strike certain bad faith allegations and dismiss and/or strike Count II and
Count III of Sosa’s complaint. The trial court’s order abates Count II and
Count III of Sosa’s complaint until coverage or extent of liability are
determined. Because the order appealed is a non-final, non-appealable order, we
grant the motion to dismiss for lack of jurisdiction.

The
order on appeal denies Citizens’ motion to dismiss and abates consideration of
Counts II and III of Sosa’s complaint until a determination of coverage is
made. It is well-established that “[a]n order abating or staying an action
pending disposition of another action is not a reviewable non-final order.” Pecora
v. Signature Gardens, Ltd., 25 So. 3d 599, 599 (Fla. 4th DCA 2009). See
also Hedin v. Indian River Cty., 610 So. 2d 715 (Fla. 4th DCA 1992).

Citizens
nonetheless argues that the order is appealable pursuant to Florida Rule of
Appellate Procedure 9.130(a)(3)(C)(xi), which provides for appeal of non-final
orders that determine “that, as a matter of law, a party is not entitled to
sovereign immunity.” Citizens’ assertion, characterizing the trial court’s
order as one determining that it is not entitled to sovereign immunity as a
matter of law, however, is not supported by the record. Significantly, the
order on appeal does not state that the motion to dismiss is denied on the
basis that Citizens lacks sovereign immunity. Instead, the order merely states
that Counts II and III of Sosa’s complaint are abated “until coverage or extent
of liability are determined.” Furthermore, a review of the transcript of the
hearing on the motion to dismiss also shows that the trial court did not reach
or rule on the issue of sovereign immunity. Cf. Amcon Builders, Inc.
v. Pardo, 120 So. 3d 1254, 1255 (Fla. 3d DCA 2013) (finding order denying
summary judgment on a claim of workers’ compensation immunity not appealable “
‘unless the trial court order specifically states that, as a matter of law,
such a defense is not available to a party’ ” (quoting Reeves v. Fleetwood
Homes of Fla., Inc., 889 So. 2d 812, 821-22 (Fla. 2004))). Here, the trial
court’s order fails to state that, as a matter of law, sovereign immunity is
not available to Citizens. As such, the trial court’s order is not appealable
pursuant to Rule 9.130(a)(3)(C)(xi).

Because
the order denying Citizens’ motion to dismiss is not reviewable under Florida
Rule of Appellate Procedure 9.130 as a non-final order, we grant Sosa’s motion
to dismiss the appeal for lack of jurisdiction.

Dismissed.

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