of Insurance
— Uninsured motorist — Bad faith — Circuit court did not, at time of its
actions, depart from essential requirements of law when, after entering partial
final judgment for insured on UM claim after insurer tendered its policy
limits, it simultaneously granted insured’s motion to amend complaint to add
first-party bad faith claim — At time of orders at issue, there was no binding
authority from district court on underlying issue of whether, under these
circumstances, insured was required to file new bad-faith action, and there was
split of authority between sister district courts on this issue — Petition for
writ of certiorari denied

THE FIRST LIBERTY INSURANCE CORPORATION, a foreign
corporation, Petitioner, v. JOHANNA O’NEILL and WILLIE J. ANDERSON,
Respondents. 4th District. Case No. 4D14-2895. January 13, 2016. Petition for
writ of certiorari to the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Donald W. Hafele, Judge; L.T. Case No. 502013CA004444MB.
Counsel: Mark S. Shapiro and Antonio D. Morin of Akerman LLP, Miami, for
petitioner. Brett C. Powell of The Powell Law Firm, P.A., Palmetto Bay, for
respondent Johanna O’Neill.

(GERBER, Judge.) The insurer appeals from: (1) the circuit
court’s partial final judgment for the insured on her uninsured motorist claim
after the insurer tendered its policy limits; and (2) the court’s simultaneous
order granting the insured’s motion to amend the complaint to add a first-party
bad faith claim. We treat the appeal as a petition for a writ of certiorari and
deny the petition.

We deny the petition because the circuit court’s decisions
— at the time of its decisions — did not constitute a departure from the
essential requirements of the law. See Custer Med. Ctr. v. United Auto. Ins.
Co., 62 So. 3d 1086, 1092 (Fla. 2010) (“The departure from the essential
requirements of the law necessary for granting a writ of certiorari is
something more than a simple legal error.”).

At the time of the circuit court’s decisions, we had not
addressed the issue of whether an insured, after obtaining a favorable result
on its benefits claim, may amend the complaint to add a first-party bad faith
claim instead of filing a new action on the bad faith claim.

Instead, the circuit court was faced with a split of
authority from our sister courts on that issue. Compare Safeco Ins. Co. of Ill.
v. Rader, 132 So. 3d 941, 947-48 (Fla. 1st DCA 2014) (denying insurer’s
petition for writ of certiorari as to the circuit court’s order denying the
insurer’s motion to enter a final judgment in accordance with the insurer’s
confession of judgment on the insured’s underinsured motorist claim, and also
granting the insured’s motion to add a bad faith claim), with Safeco Ins.
Co. of Ill. v. Fridman, 117 So. 3d 16, 17-18 (Fla. 5th DCA 2013) (trial
court erred in denying insurer’s motion to enter a final judgment in accordance
with the insurer’s confession of judgment, and also reserving jurisdiction on
the insured’s motion to amend his complaint to add a bad faith claim; instead,
the trial court should have entered the confessed judgment in the insured’s favor,
and the insured should have pursued a subsequent bad faith action against the
insurer), rev. granted, 145 So. 2d 823 (Fla. 2014).

Given the lack of binding authority from this court on the
underlying issue, and given the split of authority between our sister courts on
the underlying issue, we cannot say that the circuit court’s apparent decision
to follow the First District’s authority was a departure from the essential
requirements of the law at the time of its decision. Thus, because of that
procedural posture, we are compelled to deny the petition for writ of
certiorari and not decide the underlying issue until a final appealable
judgment is entered.

Petition denied. (GROSS and KLINGENSMITH,
JJ., concur.)

* *
*Bottom of Form