Citizens Property Insurance Corporation v. Cheria Walden

• Court: District Court of Appeal of Florida
• Decided: September 4, 2024
• Docket: 3D2024-0196
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed September 4, 2024. Not final until disposition of timely filed motion for rehearing.

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No. 3D24-196 Lower Tribunal No. 22-45098-CC-23 ________________

Citizens Property Insurance Corporation, Petitioner,

vs.

Cheria Walden, Respondent.

A Writ of Certiorari to the County Court for Miami-Dade County, Ayana Harris, Judge.

Link & Rockenbach, PA, and Kara Rockenbach Link and Daniel M. Schwarz (West Palm Beach); Bronstein & Carmona, P.A., and Hector E. Valdes-Ortiz (Fort Lauderdale), for petitioner.

Elite Insurance Law, PLLC, and Chrystal P. Robinson (Boca Raton), for respondent.

Before SCALES, GORDO and BOKOR, JJ.

SCALES, J. Petitioner, defendant below, Citizens Property Insurance Corporation

(“Citizens”) seeks certiorari review of a December 31, 2023, non-final order

denying its motion to dismiss the operative amended complaint for

respondent, plaintiff below, Cheria Walden’s failure to comply with the presuit

notice requirements of section 627.70152 of the Florida Statutes. For the

following reasons, we grant certiorari and quash the challenged order.

To obtain a writ of certiorari, the petitioner must establish “(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 post-

judgment appeal.” Damsky v. Univ. of Miami, 152 So. 3d 789, 792 (Fla. 3d

DCA 2014). The elements of material injury and the absence of a remedy on

appeal – sometimes referred to together as “irreparable harm” – are

jurisdictional requirements for certiorari relief. Gonzalez v. State, 15 So. 3d

37, 39 (Fla. 2d DCA 2009). “Unless the petitioner establishes irreparable

harm, the court must dismiss the petition for lack of jurisdiction.” Damsky,

152 So. 3d at 792.

Whether an order denying an insurer’s motion to dismiss for an

insured’s failure to comply with section 627.70152’s presuit notice

requirements is reviewable via a petition for certiorari is an issue of first

impression in Florida’s appellate courts. We have little trouble, though, in

2 determining that such orders are reviewable via certiorari based on the bevy

of medical malpractice cases finding that a litigant’s failure to satisfy the

mandatory presuit procedures set forth in chapter 766 satisfies the threshold

jurisdictional inquiry. See e.g. Dial 4 Care, Inc. v. Brinson, 319 So. 3d 111,

113 (Fla. 3d DCA 2021) (“Although certiorari generally does not lie to review

the denial of a motion to dismiss, there is a well-established exception for

motions to dismiss for failure to comply with presuit conditions precedent.”

(quoting Kissimmee Health Care Assocs. v. Garcia, 76 So. 3d 1107, 1108

(Fla. 5th DCA 2011))); Brundage v. Evans, 295 So. 3d 300, 303 (Fla. 2d DCA

2020) (“We have jurisdiction because the deficiencies in the presuit notice

requirements asserted by Defendants in this case constitute the type of

irreparable harm for which certiorari lies.”); Baptist Med. Ctr. of Beaches, Inc.

v. Rhodin, 40 So. 3d 112, 115 (Fla. 1st DCA 2010) (“Under a jurisdictional

analysis, certiorari review is proper if the trial court’s order fails to satisfy the

mandatory presuit procedures in chapter 766, which are a condition

precedent to a medical malpractice suit.”). Section 627.70152 cannot be

meaningfully enforced on post-judgment appeal because the purpose of

providing the presuit notice is to prevent the premature filing of a lawsuit.

We, therefore, turn to whether the challenged order constitutes a

departure from the essential requirements of the law. The issue of an

3 insured’s compliance with section 627.70152’s presuit notice requirements

presents an issue of law. See Rhodin, 40 So. 3d at 116 (concluding, in the

medical malpractice context, that “whether a claimant has satisfied the

threshold requirements of the presuit notice investigation, warranting denial

of the defendant’s motion to dismiss, presents an issue of law”).

Section 627.70152 – which “applies exclusively to all suits arising

under a residential or commercial property insurance policy” – requires

insureds who wish to sue their property insurance carrier to first file a written,

presuit notice of their intent to initiate litigation with Florida’s Department of

Financial Services. See § 627.70152(1), (3), Fla. Stat. (2022). If an insured

files suit without first providing the required presuit notice, or without giving

the insurance carrier adequate time to respond to the notice, the trial court

“must dismiss” the insured’s action without prejudice. See § 627.70152(5),

Fla. Stat. (2022). Here, it is not disputed that Walden failed to provide presuit

notice prior filing her lawsuit. Nevertheless, the trial court denied Citizens’s

motion to dismiss Walden’s amended complaint because the court found that

section 627.70152’s presuit notice requirements do not apply where the

insured’s lawsuit seeks only contract interpretation under Chapter 86 of the

Declaratory Judgment Act.

4 We need not reach the legal question of whether section 627.70152’s

presuit notice requirements apply to declaratory judgment actions because

Walden’s amended complaint plainly alleges a thinly veiled breach of

contract claim against Citizens that seeks damages for Citizens’s alleged

failure to make a sufficient loss payment for a covered claim. On these facts,

we conclude that the trial court departed from the essential requirements of

law when it denied Citizens’s motion to dismiss Walden’s amended

complaint that clearly alleged a first party breach of contract action. See

Brundage, 295 So. 3d at 306 (concluding that the trial court departed from

the essential requirements of the law in misapplying a statute’s mandatory

presuit procedures). We, therefore, grant the petition and quash the

challenged order.

Petition granted; order quashed.