Insurance — Homeowners — Insured’s action against insurer alleging insurer breached contract by failing to pay for covered loss and also seeking declaratory judgment

Insurance
— Homeowners — Insured’s action against insurer alleging insurer breached
contract by failing to pay for covered loss and also seeking declaratory
judgment as to whether insurer properly exercised its option to repair, whether
the insured was required to allow the insurer’s contractor to repair his home
without agreeing to proposed repairs, and whether insurer was entitled to deny
coverage when insured disputed scope of proposed repairs — Abatement of action
— Trial court departed from essential requirements of law when it abated
action pending insured’s compliance with insurer’s right to exercise its option
to repair the insured’s damages, an action which effectively amounted to
dismissal of insured’s complaint

HENRY ROBINSON, Appellant, v. FLORIDA PENINSULA INSURANCE
COMPANY, Appellee. 4th District. Case No. 4D14-1350. November 12, 2015. Appeal
from the Circuit Court for the Seventeenth Judicial Circuit, Broward County;
John J. Murphy, III, Judge; L.T. Case No. CACE13- 014338(21). Counsel: David S.
Farber of The Farber Law Firm, Coral Gables, and Todd L. Wallen of The Wallen
Law Firm, P.A., Coral Gables, for appellant. Thomas A. Valdez of Quintairos,
Prieto Wood & Boyer, P.A., Tampa, and Jose Bosch and Elizabeth Levins of
Quintairos, Prieto Wood & Boyer, P.A., Miami, for appellee.

(PER CURIAM.) Petitioner, Henry Robinson, seeks certiorari
review1 of an order abating his breach of
contract and declaratory judgment action against Florida Peninsula Insurance
Company (“FPIC”). We find that the trial court departed from the essential
requirements of law in granting an abatement under the circumstances of this
case. We therefore grant Robinson’s petition, quash the abatement order, and
remand for further proceedings.

Robinson had a homeowner’s insurance policy with FPIC, which
provided FPIC an option to repair damaged property rather than make a cash
payment. Robinson experienced damage to his home and reported it to FPIC. FPIC
determined that the loss was covered, notified Robinson of its intent to
exercise its option to repair, and attempted to coordinate repairs through its
contractor. Robinson questioned the scope and sufficiency of the contractor’s
proposed repairs and requested an appraisal. FPIC did not answer Robinson’s
inquiries and ultimately denied coverage because of Robinson’s refusal to allow
its contractor to complete the proposed repairs. According to the petition,
Robinson subsequently completed most of the repairs at his own expense.

Robinson filed a complaint against FPIC alleging breach of
contract for failing to pay for the covered loss. He also sought a declaratory
judgment as to whether FPIC properly exercised its option to repair, whether he
was required to allow FPIC’s contractor to repair his home without agreeing to
the proposed repairs, and whether FPIC was entitled to deny coverage when he
disputed the scope of the proposed repairs. FPIC did not answer the complaint,
but instead filed a motion to abate the action and compel Robinson to comply
with its right to repair his property. The trial court granted FPIC’s motion,
stating: “The action is abated. Plaintiff shall comply with the Defendant’s
right to exercise its option to repair the Plaintiff’s damages.”

Certiorari review is appropriate when an order departs from
the essential requirements of law, causing material injury throughout the
remainder of the proceedings below and effectively leaving no adequate remedy
on post-judgment appeal. See Bd. of Trs. of Internal Improvement Trust Fund
v. Am. Educ. Enters., LLC, 99 So. 3d 450, 454-55 (Fla. 2012). “An order of
abatement is properly reviewable by writ of certiorari, because there is no
adequate remedy for the delay caused by abatement after final judgment.” Britamco
Underwriters, Inc. v. Cent. Jersey Invs., Inc., 632 So. 2d 138, 139 (Fla.
4th DCA 1994); see also Pecora v. Signature Gardens, Ltd., 25 So. 3d 599,
599 (Fla. 4th DCA 2009).

We find that the trial court’s order in this case departs
from the essential requirements of law because it effectively amounts to a
dismissal of Robinson’s complaint. If Robinson has in fact completed the
repairs, the abatement will likely be indefinite, even though FPIC conceded in
the trial court that Robinson is entitled to a monetary judgment at least in
the amount of its contractor’s estimate. See Arch Roberts & Co. v.
Auto-Owners Ins. Co., 305 So. 2d 882, 882-84 (Fla. 1st DCA 1974) (affirming
summary judgment and finding insurer liable for payment to the insured in the
amount of the appraisal for repair where insured prevented insurer from
completing repairs). Robinson also may be entitled to dispute the amount of the
estimate. See Fla. Ins. Guar. Ass’n v. Branco, 148 So. 3d 488, 491-92
(Fla. 5th DCA 2014) (finding that a dispute over the method of a proposed
repair to a home is an “amount of loss” issue rather than a coverage issue).

FPIC insists that Robinson’s action is premature and was
properly abated because a new contract was created when it exercised its option
to repair, and Robinson must allow FPIC to repair his property before he can
challenge the sufficiency of the repairs. See Drew v. Mobile USA Ins. Co.,
920 So. 2d 832, 835-36 (Fla. 4th DCA 2006). Robinson urges us to find that FPIC
did not properly exercise its option to repair in the first place. We decline
to address these issues on certiorari review, as they should be litigated in
the trial court pursuant to Robinson’s action for declaratory judgment.

Under the circumstances of this case, we find that the trial
court departed from the essential requirements of law in abating Robinson’s
action. We therefore grant the petition, quash the abatement order, and remand
for further proceedings consistent with this opinion.

Petition for writ of certiorari granted; order quashed;
remanded. (WARNER, MAY and KLINGENSMITH, JJ., concur.)

__________________

1This case was originally filed as a
timely appeal of a non-final order concerning an injunction, pursuant to
Florida Rule of Appellate Procedure 9.130(a)(3)(B). We have treated the notice
of appeal as a petition for writ of certiorari. Fla. R. App. P. 9.030(b)(2)(A).