42
Fla. L. Weekly D230aTop of Form

Insurance
— Homeowners — Appeals — Certiorari — Insured is not entitled to writ of
certiorari seeking to quash trial court order abating insured’s declaratory
judgment action against insurer and enforcing the option to repair provision
contained in the policy where insured has not shown that trial court order
creates irreparable harm — Because insurer agrees that insured is not
precluded from maintaining her suit after insurer completes its repairs to
property, trial court order does not result in irreparable harm

REBECCA
FERNANDEZ-ANDREW, Petitioner, vs. FLORIDA PENINSULA INSURANCE COMPANY,
Respondent. 3rd District. Case No. 3D16-331. L.T. Case No. 15-15438. Opinion
filed January 25, 2017. On Petition for Writ of Certiorari from the Circuit
Court for Miami-Dade County, Thomas J. Rebull, Judge. Counsel: Alvarez,
Carbonell, Feltman & DaSilva, P.L., and Paul B. Feltman, for petitioner.
Quintairos, Prieto, Wood & Boyer, P.A., and Thomas A. Valdez and Jose E.
Bosch (Tampa), for respondent.

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

(LAGOA,
J.) The insured, Rebecca Fernandez-Andrew (“Petitioner”), petitions this Court
for a writ of certiorari seeking to quash the trial court’s order abating her
declaratory judgment action against the insurer, Florida Peninsula Insurance
Company (“FPIC”), and enforcing the option to repair provision contained in the
insurance policy at issue. Because Petitioner has failed to meet the threshold
requirement of showing that the circuit court’s order creates irreparable harm,
we dismiss the petition for writ of certiorari for lack of jurisdiction.

I. FACTUAL
AND PROCEDURAL HISTORY

The
Petitioner had a homeowner’s insurance policy with FPIC. The policy contained
an option to repair provision:

9. Our Option

At our option, in lieu of
issuing any loss payment, if we choose to exercise our option:

a. For losses settled on an
actual cash value basis, we may repair or replace any part of the damaged
property with material or property of like kind and quality;

b. For losses covered under
Coverage A — Dwelling, insured for Replacement Cost Loss Settlement as
outlined in Section 1 — Conditions, Loss Settlement, we may repair the damaged
property with material of like kind and quality without deduction for
depreciation.

. . . .

f. You must execute all work
authorizations to allow contractors and related parties entry to the property.

g. You must otherwise
cooperate with repairs to the property.

. . . .

i. Our right to repair or
replace, and our decision to do so, is a material part of this contract and
under no circumstances relieves you or us of our mutual duties and obligations
under this contract.

Petitioner’s
home was damaged as a result of a plumbing leak that occurred on July 20, 2014,
while the policy was in full force and effect. Petitioner reported the loss to
FPIC on July 30, 2014, and FPIC thereafter informed Petitioner that her covered
damages would be repaired.

In
early October, 2014, FPIC sent two contractors, one of which was Florida
Executive Builders (“FEB”), to the property. Each provided an estimate of
repairs. On November 25, 2014, Petitioner’s public adjuster, Robert Inguanzo (“Inguanzo”),
sent FPIC a letter stating a “damage estimate comparison depicting an overall
difference of $13,852.23 due to scope differences.” Petitioner subsequently
signed the work authorization for FEB, adding the handwritten words, “All
rights reserved; Executed under protest.” Petitioner continued to assert that
FPIC provide an updated estimate and scope of work that matched Inguanzo’s
estimate, and that prior to beginning work, FPIC assure her that the work
performed by FEB would comply with the scope detailed in Inguanzo’s estimate.

In
July of 2015, Petitioner filed a complaint for declaratory relief, seeking a
determination of, among other things, the scope of repairs to be performed and
whether the option to repair provision was properly invoked under the terms of
the policy. In response, FPIC filed a motion to abate action and/or compel
Plaintiff [Petitioner] to comply with FPIC’s right to exercise option to repair
damaged property. Petitioner then filed a motion for summary judgment and
response to FPIC’s motion to abate and/or compel.

Petitioner
argued that FPIC’s estimate was insufficient and failed to address all needed
repairs given the scope of damage and that Inguanzo’s estimate accurately
reflected the full scope, cost, and extent of damages. After a hearing, the
trial court entered an order granting FPIC’s motion to abate action and/or
compel Petitioner to comply with FPIC’s option to repair.

II.
ANALYSIS

The
Supreme Court of Florida has made clear that certiorari relief is available in
limited circumstances, and that a showing of irreparable harm is a condition
precedent to invoking this Court’s certiorari jurisdiction:

A finding that the
petitioning party has “suffered an irreparable harm that cannot be remedied on
direct appeal” is a “condition precedent to invoking a district court’s
certiorari jurisdiction.”

If the party seeking review
does not demonstrate that it will suffer material injury of an irreparable
nature, then an appellate court may not grant certiorari relief from a
non-appealable non-final order.

Bd.
of Trs. of Internal Improvement Tr. Fund v. Am. Educ. Enters., LLC,
99 So. 3d 450, 454-55 (Fla. 2012) (citations omitted). See also Coral
Gables Chiropractic PLLC v. United Auto. Ins. Co., 199 So. 3d 292, 293
(Fla. 3d DCA 2016) (stating that if a petition for certiorari fails to make a
threshold showing of irreparable harm, the Court will dismiss the petition).

Because
Petitioner seeks review of a non-final order for which no appeal is provided by
Florida Rule of Appellate Procedure 9.130, this Court’s review is limited to a
determination of whether Petitioner has established that the trial court’s
order granting FPIC’s motion to abate and to compel Petitioner to comply with
FPIC’s option to repair constitutes (1) a departure from the essential
requirements of the law, (2) resulting in material injury for the remainder of
the case, (3) that cannot be corrected on postjudgment appeal, such that
certiorari relief is warranted. See Bd. of Trs. of Internal
Improvement Tr. Fund, 99 So. 3d at 454-55; Coral Gables Chiropractic,
199 So. 3d at 294; Sea Coast Fire, Inc. v. Triangle Fire, Inc., 170 So.
3d 804, 807 (Fla. 3d DCA 2014).

In
support of Petitioner’s contention that she has demonstrated irreparable harm,
Petitioner asserts that the work authorization is a full release of liability
in favor of FPIC, and that it “inoculates” FPIC from any attempt by Petitioner
to lift the abatement and re-open proceedings against it. At oral argument,
however, counsel for FPIC represented to this Court that after the repairs are
made, Petitioner may properly seek to lift the abatement in order to dispute
the scope of repairs or allege the failure of FPIC to return the property to
its pre-loss condition.

Because
FPIC agrees that Petitioner is not precluded from maintaining her suit after
FEB completes its repairs to the property, the trial court’s order does not
result in irreparable harm, see generally K.G. v. Florida Dep’t of
Children & Families, 66 So. 3d 366, 368 (Fla. 1st DCA 2011) (“A
petitioner can show irreparable harm by demonstrating either that the injury
cannot be redressed in a court of law or that there is no adequate legal
remedy.”), and relief via certiorari is not available. Because Petitioner has
not made a threshold showing of irreparable harm, this Court need not reach the
issue of whether the trial court’s order constitutes a departure from the
essential requirements of the law.

III.
CONCLUSION

Based
on the particular facts and circumstances of the instant case, we conclude that
the petition fails to establish that the trial court’s order of abatement
results in irreparable harm. Accordingly, we dismiss the petition for
certiorari for lack of jurisdiction.

Dismissed.

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