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SCOFLA: CITIZENS BAD FAITH CASE MUST GO TO TRIAL

citizens SCOFLA: CITIZENS BAD FAITH CASE MUST GO TO TRIALBy DAVID ROYSE
THE NEWS SERVICE OF FLORIDA

THE CAPITAL, TALLAHASSEE, November 15, 2012….The question of whether the state-created property insurance company is immune from a bad faith lawsuit must wait for a judgment in a trial court, the state Supreme Court ruled Thursday.

A Panhandle property owner, San Perdido Association, had sued Citizens Property Insurance Corp. when Citizens didn’t fully pay a claim from Hurricane Ivan in 2004. A court ordered Citizens to pay the claim and it did. Then, the association filed a new lawsuit against Citizens, alleging the company acted in bad faith in originally denying the claim.

Citizens was created by the state and charged with insuring property that is otherwise uninsurable. Because it is a state entity under the law, Citizens argued that it is immune from such lawsuits.

The law, however, says some lawsuits against state entities are allowed, including those involving breach of contract, or when an agency commits a willful wrong against someone. A circuit judge, therefore, denied a motion by Citizens to dismiss the case.

Citizens then petitioned the 1st District Court of Appeal to order the case weigh dismissed because of the immunity, even though the underlying case about whether Citizens acted in bad faith hadn’t been ruled on by the circuit court.

Generally, issues aren’t reviewed on appeal until the conclusion of the full case in a lower court.

And the appeals court ruled that Citizens couldn’t seek to have an appeals court halt the case in the manner it did before the trial court had actually decided the lawsuit. The appeals court noted, however, that there had been differing decisions by Florida appeals courts on this procedural question.

The Supreme Court on Thursday found that there are times when an appeals court might review an order in a case that isn’t finished at a lower court, but they’re limited to certain circumstances. The Citizens v. San Perdido case, the court said by a 5-2 majority, was not such a case, and the trial court has jurisdiction over the question of sovereign immunity for the insurer.

The situation in the case isn’t one of irreparable harm, the court said. The only negative consequence for Citizens of having to continue the case is that it must fight the original lawsuit.

“Ordinarily, the expense of continued litigation does not constitute irreparable harm, and thus the (appeals) courts do not have jurisdiction to (intervene) based on a public entity’s claim that it is entitled to immunity based on the particular facts of the lawsuit brought against it,” Justice Barbara Pariente wrote for the court’s 5-2 majority.

Joining Pariente in the ruling were Justices Peggy Quince, Jorge Labarga and James E.C. Perry. Justice Fred Lewis also agreed with the majority, though in a different opinion. Justices Charles Canady and Chief Justice Ricky Polston were in the minority.

The court on Thursday also ruled the opposite way, however, in another sovereign immunity case involving a petition to an appeals court to intervene before a lower court ruling.

In that case, Andreas Keck v. Ashleigh Eminisor, the court ruled that Keck, a Jacksonville Transit Authority bus driver, couldn’t be sued for negligence because he has individual immunity as an employee of a government agency, and that he should have been granted summary judgment throwing the case out. Keck was the driver in an accident in which Eminisor was hit and injured.

The case was similar, in that the question focused on whether the appeals courts should wait for a trial court ruling when reviewing the denial of a motion for summary judgment. But it’s different in that the law says in most negligence cases, individual government employees can’t be sued – only their employer. Exceptions, such as a person acting in bad faith, or maliciously, or with wanton and willful disregard, didn’t apply in this case.

To not avow Keck of the opportunity to have an appeals court stop the lawsuit misses the point of the law, the court ruled – which is to protect him from even being named as a defendant.

The court also addressed another issue in the case, whether a contractor working for the Jacksonville bus agency – for which Keck technically worked – was afforded sovereign immunity. The court found that the contractor was “primarily acting as an instrumentality … of the state,” and therefore Keck enjoyed immunity.

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