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Fla. L. Weekly D1648dTop of Form
Fla. L. Weekly D1648dTop of Form
Insurance
— Appeals — Order granting judgment for insured in insured’s breach of
contract claim against insurer is not an appealable partial final judgment
where insured’s negligence per se claim remains pending in trial court and is
interdependent with facts giving rise to breach of contract claim
— Appeals — Order granting judgment for insured in insured’s breach of
contract claim against insurer is not an appealable partial final judgment
where insured’s negligence per se claim remains pending in trial court and is
interdependent with facts giving rise to breach of contract claim
GULFSTREAM PROPERTY & CASUALTY
INSURANCE COMPANY, Appellant, v. DAVID COLEY, Appellee. 3rd District. Case No.
3D16-885. L.T. Case No. 11-13204. July 26, 2017. An Appeal from the Circuit
Court for Miami-Dade County, Michael A. Hanzman, Judge. Counsel: Groelle &
Salmon, P.A., and Celeste B. Marcks (West Palm Beach), for appellant. Alvarez,
Carbonell, Feltman, & DaSilva, PL, and Paul B. Feltman, for appellee.
INSURANCE COMPANY, Appellant, v. DAVID COLEY, Appellee. 3rd District. Case No.
3D16-885. L.T. Case No. 11-13204. July 26, 2017. An Appeal from the Circuit
Court for Miami-Dade County, Michael A. Hanzman, Judge. Counsel: Groelle &
Salmon, P.A., and Celeste B. Marcks (West Palm Beach), for appellant. Alvarez,
Carbonell, Feltman, & DaSilva, PL, and Paul B. Feltman, for appellee.
(Before LAGOA, SCALES, and LUCK,
JJ.)
JJ.)
(LAGOA, J.) Gulfstream Property
& Casualty Insurance Co. (“Gulfstream”) appeals the entry of summary
judgment in favor of its insured, David Coley (“Coley”), as to Count I of the
Amended Complaint. Because the order under appeal is neither a final order nor
an appealable non-final order, we dismiss for lack of jurisdiction.
& Casualty Insurance Co. (“Gulfstream”) appeals the entry of summary
judgment in favor of its insured, David Coley (“Coley”), as to Count I of the
Amended Complaint. Because the order under appeal is neither a final order nor
an appealable non-final order, we dismiss for lack of jurisdiction.
I. FACTUAL AND PROCEDURAL HISTORY
Coley filed a single count complaint
against Gulfstream for breach of contract (Count I) related to a claim under
his homeowner’s policy stemming from Hurricane Wilma. After the trial court
granted Coley’s motion for summary judgment, Gulfstream sought to appeal the
order twice. This Court dismissed both appeals for lack of jurisdiction. Gulfstream
Prop. & Cas. Ins. Co. v. Coley, 195 So. 3d 381 (Fla. 3d DCA 2015); Gulfstream
Prop. & Cas. Ins. Co. v. Coley, 208 So. 3d 91 (Fla. 3d DCA 2015).
against Gulfstream for breach of contract (Count I) related to a claim under
his homeowner’s policy stemming from Hurricane Wilma. After the trial court
granted Coley’s motion for summary judgment, Gulfstream sought to appeal the
order twice. This Court dismissed both appeals for lack of jurisdiction. Gulfstream
Prop. & Cas. Ins. Co. v. Coley, 195 So. 3d 381 (Fla. 3d DCA 2015); Gulfstream
Prop. & Cas. Ins. Co. v. Coley, 208 So. 3d 91 (Fla. 3d DCA 2015).
After it granted summary judgment,
the trial court granted Coley leave to assert claims for bad faith under
section 624.155, Florida Statutes (2016), and for negligence per se under
section 825.102, Florida Statutes (2016). Coley filed an Amended Complaint
asserting the following three counts: (1) breach of contract (Count I) (Coley’s
original claim); (2) civil remedy of bad faith pursuant to section 624.155
(Count II); and (3) negligence per se pursuant to section 825.102 (Count III).
Several months later, the trial court entered a “Final Judgment” (hereinafter
referred to as the “Order”) based on its earlier order granting summary
judgment on the claim for breach of contract. In relevant part, the Order
stated that Coley recover from Gulfstream “the gross sum of . . . $24,168.60,
of which the net sum of . . . $19,334.88, payable to Mr. Coley by order of this
Court, has since been satisfied by Defendant.” The Order further stated:
“Plaintiff’s bad faith claim [Count II] . . . is stayed until further order of
this Court.” The Order did not mention Count III of the Amended Complaint (i.e.,
the negligence per se claim) and that count remains pending below. Gulfstream
timely appealed the Order, and this appeal ensued.
the trial court granted Coley leave to assert claims for bad faith under
section 624.155, Florida Statutes (2016), and for negligence per se under
section 825.102, Florida Statutes (2016). Coley filed an Amended Complaint
asserting the following three counts: (1) breach of contract (Count I) (Coley’s
original claim); (2) civil remedy of bad faith pursuant to section 624.155
(Count II); and (3) negligence per se pursuant to section 825.102 (Count III).
Several months later, the trial court entered a “Final Judgment” (hereinafter
referred to as the “Order”) based on its earlier order granting summary
judgment on the claim for breach of contract. In relevant part, the Order
stated that Coley recover from Gulfstream “the gross sum of . . . $24,168.60,
of which the net sum of . . . $19,334.88, payable to Mr. Coley by order of this
Court, has since been satisfied by Defendant.” The Order further stated:
“Plaintiff’s bad faith claim [Count II] . . . is stayed until further order of
this Court.” The Order did not mention Count III of the Amended Complaint (i.e.,
the negligence per se claim) and that count remains pending below. Gulfstream
timely appealed the Order, and this appeal ensued.
II. ANALYSIS
Although neither party challenged
this Court’s jurisdiction, we conclude that the Order appealed is neither a final
order1 nor an appealable, non-final order as
it suffers from several jurisdictional defects. First, while the Order stays
the insured’s bad faith claim (Count II), it does not mention Coley’s
negligence per se claim (Count III). No record evidence exists that Count III
was intended to have been stayed as well. At oral argument, counsel for
Gulfstream contended that this absence may be chalked up to a scrivener’s
error. While “the court in its discretion may grant the parties additional time
to obtain a final order from the lower tribunal,” Fla. R. App. P. 9.110(l),
we decline to do so in light of the second, more serious jurisdictional defect
contained in the Order.
this Court’s jurisdiction, we conclude that the Order appealed is neither a final
order1 nor an appealable, non-final order as
it suffers from several jurisdictional defects. First, while the Order stays
the insured’s bad faith claim (Count II), it does not mention Coley’s
negligence per se claim (Count III). No record evidence exists that Count III
was intended to have been stayed as well. At oral argument, counsel for
Gulfstream contended that this absence may be chalked up to a scrivener’s
error. While “the court in its discretion may grant the parties additional time
to obtain a final order from the lower tribunal,” Fla. R. App. P. 9.110(l),
we decline to do so in light of the second, more serious jurisdictional defect
contained in the Order.
Pursuant to Florida Rule of
Appellate Procedure 9.110(k),2 a partial final judgment is
appealable if it “is one that disposes of a separate and distinct cause of
action that is not interdependent with other pleaded claims.” Because the
negligence per se claim remains pending below and is interdependent with the
facts giving rise to the breach of contract claim, the order on appeal cannot
constitute a partial final judgment under Rule 9.110(k).
Appellate Procedure 9.110(k),2 a partial final judgment is
appealable if it “is one that disposes of a separate and distinct cause of
action that is not interdependent with other pleaded claims.” Because the
negligence per se claim remains pending below and is interdependent with the
facts giving rise to the breach of contract claim, the order on appeal cannot
constitute a partial final judgment under Rule 9.110(k).
Often in the insurance context, a
dissatisfied insured brings a breach of contract claim against his or her
insurer. Once that claim has been brought to a final judgment, the insured may
then litigate a bad faith claim against the insurer based on the insurer’s
conduct subsequent to the initial breach of contract. Procedurally, this is
usually accomplished by including the bad faith claim either in the initial
complaint (in which case the bad faith claim is stayed pending the
determination of the breach of contract claim) or an amended pleading after the
final judgment in the breach of contract claim. See Fridman v. Safeco Ins.
Co. of Ill., 185 So. 3d 1214, 1229-30 (Fla. 2016). Generally then “a final
ruling on coverage [the breach of contract claim] is appealable when a bad
faith claim remains pending between the parties, with the rationale being that
the coverage issue should be completely resolved before the bad faith claim
proceeds.” North Am. Capacity Ins. Co. v. C.H., 173 So. 3d 1075, 1077
(Fla. 2d DCA 2015). When other claims interdependent with the breach of
contract claim remain pending, however, the order disposing of the breach of
contract claim is not an appealable final judgment. GEICO Gen. Ins. Co. v.
Perez, 199 So. 3d 380, 380 (Fla. 3d DCA 2016) (dismissing appeal where
order adjudicated only one of six counts against insurer and remaining counts
were “intertwined with and not independent of, the adjudicated count”); GEICO
Gen. Ins. Co. v. Pruitt, 122 So. 3d 484, 487 (Fla. 3d DCA 2013) (dismissing
appeal from partial summary judgment ruling on validity of Coblentz
agreement while bad faith claim remains pending); Universal Underwriters
Ins. Co. v. Stathopoulos, 113 So. 3d 957 (Fla. 2d DCA 2013) (dismissing
appeal from partial final judgment on declaratory count where breach of
contract and bad faith claims against insurer remained pending).
dissatisfied insured brings a breach of contract claim against his or her
insurer. Once that claim has been brought to a final judgment, the insured may
then litigate a bad faith claim against the insurer based on the insurer’s
conduct subsequent to the initial breach of contract. Procedurally, this is
usually accomplished by including the bad faith claim either in the initial
complaint (in which case the bad faith claim is stayed pending the
determination of the breach of contract claim) or an amended pleading after the
final judgment in the breach of contract claim. See Fridman v. Safeco Ins.
Co. of Ill., 185 So. 3d 1214, 1229-30 (Fla. 2016). Generally then “a final
ruling on coverage [the breach of contract claim] is appealable when a bad
faith claim remains pending between the parties, with the rationale being that
the coverage issue should be completely resolved before the bad faith claim
proceeds.” North Am. Capacity Ins. Co. v. C.H., 173 So. 3d 1075, 1077
(Fla. 2d DCA 2015). When other claims interdependent with the breach of
contract claim remain pending, however, the order disposing of the breach of
contract claim is not an appealable final judgment. GEICO Gen. Ins. Co. v.
Perez, 199 So. 3d 380, 380 (Fla. 3d DCA 2016) (dismissing appeal where
order adjudicated only one of six counts against insurer and remaining counts
were “intertwined with and not independent of, the adjudicated count”); GEICO
Gen. Ins. Co. v. Pruitt, 122 So. 3d 484, 487 (Fla. 3d DCA 2013) (dismissing
appeal from partial summary judgment ruling on validity of Coblentz
agreement while bad faith claim remains pending); Universal Underwriters
Ins. Co. v. Stathopoulos, 113 So. 3d 957 (Fla. 2d DCA 2013) (dismissing
appeal from partial final judgment on declaratory count where breach of
contract and bad faith claims against insurer remained pending).
The Fifth District Court of Appeal’s
decision in Prudential Property & Casualty Insurance Co. v. Gerber,
773 So. 2d 571, 571 (Fla. 5th DCA 2000), is instructive. In Gerber, the
insurer for the tortfeasor in an automobile accident obtained a release from
the automobile accident victim for “all bodily injury resulting from the
accident.” Following the release, the automobile accident victim filed an
independent suit against the tortfeasor for his negligence in causing the
accident. Id. The automobile accident victim also proceeded to file suit
against the insurer for its earlier actions in obtaining the release from the
victim, which the victim alleged constituted exploitation of the elderly in
violation of section 825.102, Florida Statutes. Id. The insurer moved to
stay the action against it until the negligence action against the insured was
concluded, which the trial court denied. Id. at 572. The insurer filed a
petition for certiorari before the Fifth District Court of Appeal claiming that
the action against it was similar to a bad faith action and therefore did not
accrue until the liability claim against the insured tortfeasor was decided.
The district court denied the petition and concluded that the independent
action was not akin to a bad faith claim for refusal to settle. Id.
decision in Prudential Property & Casualty Insurance Co. v. Gerber,
773 So. 2d 571, 571 (Fla. 5th DCA 2000), is instructive. In Gerber, the
insurer for the tortfeasor in an automobile accident obtained a release from
the automobile accident victim for “all bodily injury resulting from the
accident.” Following the release, the automobile accident victim filed an
independent suit against the tortfeasor for his negligence in causing the
accident. Id. The automobile accident victim also proceeded to file suit
against the insurer for its earlier actions in obtaining the release from the
victim, which the victim alleged constituted exploitation of the elderly in
violation of section 825.102, Florida Statutes. Id. The insurer moved to
stay the action against it until the negligence action against the insured was
concluded, which the trial court denied. Id. at 572. The insurer filed a
petition for certiorari before the Fifth District Court of Appeal claiming that
the action against it was similar to a bad faith action and therefore did not
accrue until the liability claim against the insured tortfeasor was decided.
The district court denied the petition and concluded that the independent
action was not akin to a bad faith claim for refusal to settle. Id.
Similar to the negligence action in Gerber,
the negligence per se claim brought in this action under section 825.201 is not
akin to the bad faith claim also alleged here. Instead, the negligence per se
claim is interdependent with the breach of contract claim Coley initially
brought against his insurer. Because the negligence per se claim is
interdependent and intertwined with the breach of contract claim, the order at
issue does not constitute a partial final judgment pursuant to Rule 9.110(k).
Accordingly, this Court lacks jurisdiction to entertain this appeal and
dismisses the appeal.
the negligence per se claim brought in this action under section 825.201 is not
akin to the bad faith claim also alleged here. Instead, the negligence per se
claim is interdependent with the breach of contract claim Coley initially
brought against his insurer. Because the negligence per se claim is
interdependent and intertwined with the breach of contract claim, the order at
issue does not constitute a partial final judgment pursuant to Rule 9.110(k).
Accordingly, this Court lacks jurisdiction to entertain this appeal and
dismisses the appeal.
DISMISSED.
__________________
1Irrespective of the caption of the
trial court’s order, the Order at issue here is non-final, as Count III remains
pending and is intertwined with, and not independent of, Count I.
trial court’s order, the Order at issue here is non-final, as Count III remains
pending and is intertwined with, and not independent of, Count I.
2Rule 9.110(k) provides in part that:
“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.”
“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.”
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