Property insurance — Sinkhole claims — Neutral evaluation — Trial court improperly sustained insured’s objection to insurer’s notice of stay of breach of contract litigation pending neutral evaluation of sinkhole claim — Insurer did not waive right to neutral evaluation by participating in litigation

Insurance — Sinkhole claims — Neutral evaluation — Trial
court improperly sustained insured’s objection to insurer’s notice of stay of
breach of contract litigation pending neutral evaluation of sinkhole claim —
Insurer did not waive right to neutral evaluation by participating in
litigation

CITIZENS PROPERTY INSURANCE CORPORATION, a Florida government entity,
Petitioner, v. DONNA KING, Respondent. 2nd District. Case No. 2D13-5734. Opinion
filed June 13, 2014. Petition for Writ of Certiorari to the Circuit Court for
Pasco County; Stanley R. Mills, Judge. Counsel: Kara Berard Rockenbach of Methe
& Rockenbach, P.A., West Palm Beach; and Michael Ruel of Galloway, Johnson,
Tompkins, Burr & Smith, PLC, Tampa, for Petitioner. Raymond T. Elligett, Jr.
of Buell & Elligett, P.A., Tampa; and Andrew M. Bragg and Sarah R. Kinnett
of Morgan & Morgan, P.A., Tampa, for Respondent.

(BLACK, Judge.) Citizens Property Insurance Corporation (“Citizens”) seeks
certiorari review of the trial court’s order sustaining Donna King’s objection
to Citizen’s notice of stay pursuant to section 627.7074(10), Florida Statutes
(2013), in the underlying breach of contract action brought by Ms. King against
Citizens.

Ms. King filed her lawsuit against Citizens for breach of contract and
damages for sinkhole losses to her property, which Citizens insured and for
which Ms. King had a sinkhole policy. Prior to trial, Citizens invoked the
statutory neutral evaluation process and filed a notice of stay with the trial
court pursuant to section 627.7074(10). Ms. King filed an objection to the
notice of stay, arguing that Citizens had waived its right to neutral evaluation
by participating in litigation of the case in circuit court. She also contended
that Citizens failed to comply with the neutral evaluation statute when it did
not provide Ms. King with the statutorily mandated consumer information pamphlet
notifying Ms. King of her right to participate in the neutral evaluation
process. See § 627.7074(3). The trial court sustained Ms. King’s
objection and found that Citizens “waived its right to neutral evaluation by
actively participating in litigation.” The order did not address the argument
that Citizens failed to comply with statutory and contractual notice
requirements.1

As we did in Citizens Property Insurance Corp. v. Trapeo, 136 So. 3d
670, 673 (Fla. 2d DCA 2014), to the extent the order under review prohibits
Citizens from invoking the neutral evaluation process, we grant the petition and
quash the order. See also Citizens Prop. Ins. Corp. v. Hanos, 39
Fla. L. Weekly D577 (Fla. 2d DCA March 19, 2014); Citizens Prop. Ins. Corp.
v. Finley, 39 Fla. L. Weekly D248 (Fla. 2d DCA Jan. 31, 2014). Additionally,
we treat the remaining portion of Citizens’ petition, challenging the denial of
the automatic stay, as a petition for writ of mandamus and grant the petition.
The trial court is directed to stay the underlying proceedings pending
completion of neutral evaluation, as required by section 627.7074(10).
See Trapeo, 136 So. 3d at 680; Finley, 39 Fla. L. Weekly
D248; Hanos, 39 Fla. L. Weekly D577.

Certiorari petition granted; order quashed; mandamus petition granted with
directions. (CASANUEVA and KHOUZAM, JJ., Concur.)

__________________

1The appendix provided by Citizens includes
a letter from 2011 in which Citizens accepted liability for the damage and
attached the required pamphlet on neutral evaluation. It is unclear from the
appendix, however, whether that document is included in the record below.
Moreover, although the failure to notify argument was raised in the trial court
and in the response brief here, the notification issue was not the basis for the
trial court’s ruling and is therefore not before this court.