Insurance — Bad faith failure to settle claim — Citizens
Property Insurance Corporation — Trial court erred in dismissing complaint
against Citizens Property Insurance Corporation, alleging failure to attempt in
good faith to settle claim, on ground that Citizens is immune from suit —
Citizens’ immunity does not extend to the willful tort of failing to attempt to
settle claims in good faith — Conflict certified — Question certified: Whether
the immunity of Citizens Property Insurance Corporation, as provided in section
627.351(6)(s), Florida Statutes, shields the corporation from suit under the
cause of action created by section 624.155(1)(b), Florida Statutes for not
attempting in good faith to settle claims?

PERDIDO SUN CONDOMINIUM ASSOCIATION, INC., Appellant, v. CITIZENS PROPERTY
INSURANCE CORPORATION, a Florida Corporation, Appellee. 1st District. Case No.
1D13-1951. Opinion filed January 23, 2014. An appeal from the Circuit Court for
Escambia County. Terry D. Terrell, Judge. Counsel: Richard M. Beckish, Jr. of
the Liberis Law Firm, P.A., Pensacola, for Appellant. Kara Berard Rockenbach of
Methe & Rockenbach, P.A., West Palm Beach and Gina G. Smith of Butler,
Pappas, Weihmuller, Katz & Craig, LLP, Tallahassee, for Appellee.

(CLARK, Judge.) Perdido Sun Condominium Association (“Perdido Sun”) appeals
the final order dismissing with prejudice its complaint for damages for Citizens
Property Insurance Corporation’s (“Citizens”) alleged failure to attempt in good
faith to settle Perdido Sun’s property insurance claim.1 The complaint was filed pursuant to section 624.155,
Florida Statutes, which provides a civil remedy for persons damaged by an
insurer’s failure to settle claims in good faith. The circuit court found that
Citizens was immune from suit under section 627.351(6)(s)1., Florida Statutes,
and that a statutory bad-faith action under section 624.155 was not among the
specifically listed exceptions to this immunity. § 627.351(6)(s)1., a.-e., Fla.
Stat. The circuit court’s dismissal of the complaint with prejudice is a
determination that section 627.351(6)(s)1. shields Citizens from suit for the
cause of action set out in section 624.155 under all circumstances and any set
of facts. We disagree, reverse the final judgment for Citizens, and remand for
further proceedings.

Citizens is an insurer created by the legislature for the public purpose of
providing “affordable property insurance to applicants who are in good faith
entitled to procure insurance through the voluntary market but are unable to do
so.” § 627.351(6)(a)1., Fla. Stat. Citizens is described in the statute as “a
government entity that is an integral part of the state, but is not a private
insurance company.” Id. As a creature of statute, Citizens’ operations,
procedures, duties, and legal status are governed by section 627.351(6), Florida
Statutes.

At issue in this case is Citizens’ immunity from suit, as provided by section
627.351(6)(s)1., and particularly its immunity from a suit on the statutory
cause of action established by section 624.155.2 Section 627.351(6)(s)1. provides in part:

After its insured property was damaged by a hurricane in 2004, Perdido Sun
made a claim on its insurance policy with Citizens.3 Perdido Sun was not satisfied with the amount of
Citizens’ eventual payment on the claim and filed a breach of contract action to
recover additional sums under the insurance contract. Perdido Sun prevailed on
the breach of contract claim and this Court affirmed that judgment. Citizens
Prop. Ins. Corp. v. Perdido Sun Condo. Ass’n, Inc., 22 So. 3d 71 (Fla. 1st
DCA 2009).

Based on the circuit court’s findings regarding Citizens’ actions in the
breach of contract case, Perdido Sun filed a second lawsuit against Citizens for
the civil remedy provided in section 624.155(1)(b)1., Florida Statutes, a
statutory “bad faith” claim. Section 624.155(1) establishes a cause of action
against “the insurer” for “[n]ot attempting in good faith to settle claims when,
under all the circumstances, it could and should have done so, had it acted
fairly and honestly toward its insured and with due regard for her or his
interests.” § 624.155(1)(b)1., Fla. Stat. An insurer’s failure to “promptly
settle claims” in order to influence partial settlements is also listed as an
act subjecting an insurer to the statutory remedy under section 624.155(1)(b)2.

Citizens moved to dismiss the “bad faith” complaint, asserting its immunity
from suit under section 627.351(6)(s)1. The circuit court granted the motion and
entered final judgment for Citizens, adopting the reasoning and statutory
analysis of Citizens’ immunity from suit under section 627.351(6)(s) discussed
in Citizens Prop. Ins. Corp. v. Garfinkel, 25 So. 3d 62 (Fla. 5th DCA
2009), disapproved on other grounds, Citizens Prop. Ins. Corp. v. San
Perdido Ass’n Inc., 104 So. 3d 344 (Fla. 2012), and Judge Wetherell’s
dissent in San Perdido Ass’n, Inc., 46 So. 3d 1051, 1053 (Fla. 1st DCA
2010). The standard for this Court’s review is de novo because the motion to
dismiss was “based on a claim that no legal cause of action exists as alleged in
the complaint.” Florida Dep’t of Corrections v. Abril, 969 So. 2d 201,
204 (Fla. 2007).

On appeal, Perdido Sun maintains that the immunity provided to Citizens by
section 627.351(6)(s)1. does not apply to “any willful tort” under the exception
in subsection 627.351(6)(s)1.a. and that the actions of an insurer described by
section 624.155(1)(b) constitute “willful torts.” Citizens counters that the
exceptions to Citizens’ immunity listed in section 627.351(6)(s)1. must be
strictly construed and the absence of a specific reference to the statutory
cause of action provided by section 624.155 among the listed exceptions
precludes a “bad faith” action under that statute against Citizens.

The phrase “any willful tort” is not further defined in chapter 627. However,
“willful” is defined in section 627.041(7): “in relation to an act or omission
which constitutes a violation of this part [willful] means with actual knowledge
or belief that such an act or omission constitutes such violation and with
specific intent nevertheless to commit such act or omission.” A “tort” is
defined as: “A civil wrong, other than a breach of contract, for which a remedy
may be obtained, usu. in the form of damages; a breach of duty that the law
imposes on persons who stand in a particular relation to one another.” Black’s
Law Dictionary 1526 (8th ed. 2004). Black’s Law Dictionary equates “willful
tort” with “intentional tort,” both defined as “[a] tort committed by someone
acting with general or specific intent.” Id. at 1527.

The law does impose a duty of good faith on Citizens regarding its policy
holders. Although Citizens differs from private insurers because Citizens has “a
duty to the state to manage its assets responsibly to minimize its assessment
potential,” the same statute imposes upon Citizens a “duty to its policyholders
to handle claims carefully, timely, diligently, and in good faith.” §
627.351(6)(s)2., Fla. Stat. Because the law, in section 627.351(6)(s),
specifically imposes upon Citizens a duty to handle its insured’s claims in good
faith, a breach of this duty falls under the broad definition of “tort.” It is
true that not every violation of statute by an entity governed or regulated by
the statute gives rise to a private cause of action to enforce the provision or
to recover damages. “Whether a violation of statute can serve as the basis for a
private cause of action is a question of legislative intent.” Aramark Uniform
& Career Apparel, Inc. v. Easton, 894 So. 2d 20, 23 (Fla. 2005). Here,
the legislative intent to create a private cause of action in “any person . . .
when such person is damaged” against “an insurer” for failure to attempt in good
faith to settle claims is clear under section 624.155. The fact that Citizens is
“not a private insurance company” (§ 627.351(6)(a)1., Fla. Stat.) does not mean
that it is not an “insurer” as defined by section 624.103, Florida
Statutes,4 and as contemplated in section
624.155(1).

In light of the definitions of “willful” and “tort,” and considering that
Citizens, while not a private insurance company, is nonetheless charged by the
legislature to provide affordable property insurance to policy holders and to
serve the policy holders at “the highest possible level but never less than that
generally provided in the voluntary market,” (§ 627.351(6)(a)4., Fla. Stat.),
the “willful tort” exception to Citizens’ immunity from suit allows Citizens’ to
be sued for the statutory civil remedy provided in section 624.155(b). Of
course, the plaintiff is required to prove the cause of action, including the
willfulness and lack of good faith in Citizens’ settlement efforts. This burden
of proof does not mean that there is no cause of action available under section
624.155 against Citizens under any possible factual circumstances. Citizens’
immunity does not extend to the “willful tort” of failing to attempt in good
faith to settle claims as provided by section 624.155, Florida Statutes.

The final order granting the motion to dismiss the complaint, with prejudice,
is REVERSED and this cause remanded. To the extent that the opinion in
Citizens Prop. Ins. Corp. v. Garfinkel, 25 So. 3d 62 (Fla. 5th DCA 2010),
disapproved on other grounds, Citizens Prop. Ins. Corp. v. San Perdido
Ass’n, Inc., 104 So. 3d 34 (Fla. 2012) expressly and directly conflicts with
the decision of this court, we certify conflict with the fifth district
decision. In addition, in light of Citizens’ status as a government entity
serving the compelling public purpose described in its enabling statute, we
certify the following question of great public importance:

(WOLF and VAN NORTWICK, JJ., CONCUR.)

__________________

1Unlike the propriety and mechanism for
review of the non-final orders via extraordinary writ or interlocutory appeal,
as addressed in Citizens Prop. Ins. Corp. v. Garfinkel, 25 So. 3d 62
(Fla. 5th DCA 2010); Citizens Prop. Ins. Corp. v. San Perdido Ass’n Inc.,
46 So. 3d 1051 (Fla. 1st DCA 2010); and Citizens Prop. Ins. Corp. v. San
Perdido Ass’n Inc., 104 So. 3d 344 (Fla. 2012), this is an appeal of a final
order dismissing the action with prejudice. The reviewable nature of the order
on appeal here is not in question.

2Because section 627.351(6)(s)1.
specifically addresses Citizens’ immunity and the exceptions thereto, we are not
dealing with the waiver of sovereign immunity for torts against the state and
state agencies under section 768.28, Florida Statutes. See also Art. X, §
13, Fla. Const.

3A similar claim was filed by another
condominium association owning property insured by Citizens — San Perdido
Association, Inc. Litigation by these two associations against Citizens has
progressed in parallel fashion. See Citizens Prop. Ins. Corp. v. San
Perdido Ass’n, Inc., 46 So. 3d 1051 (Fla. 1st DCA 2010), approved,
104 So. 3d 344 (Fla. 2012); Citizens Prop. Ins. Corp. v. San Perdido Ass’n,
Inc., 22 So. 3d 71 (Fla. 1st DCA 2009).

4“ ‘Insurer’ includes every person engaged
as an indemnitor, surety, or contractor in the business of entering into
contracts of insurance or of annuity.” § 627.03, Fla. Stat. “ ‘Person’ includes
an individual, insurer, company[,] . . . corporation[,] . . . and every legal
entity.” § 624.04, Fla. Stat.