NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
GOVERNMENT EMPLOYEES ) INSURANCE COMPANY, ) ) Appellant, ) ) v. ) Case No. 2D16-2831 ) ELIZABETH ARREOLA and MARIA ) DE ARREOLA, GEICO GENERAL ) INSURANCE COMPANY, and ) KIMBERLY LEE, ) ) Appellees. ) ___________________________________ )
Opinion filed June 2, 2017.
Appeal from the Circuit Court for Hillsborough County; Mark R. Wolfe, Judge.
B. Richard Young, Amanda L. Kidd, Stephanie A. McQueen, and Joshua J. Hartley of Young, Bill, Boles, Palmer & Duke, P.A., Pensacola, for Appellant.
Charles M. Schropp and Charles P. Schropp of Schropp Law Firm, P.A., Tampa; and Dennis G. Diecidue of The Diecidue Law Firm, P.A., Tampa, for Appellees Elizabeth Arreola and Maria De Arreola.
No appearance for remaining Appellees. CASE, JAMES R., Associate Senior Judge.
Government Employees Insurance Company (Geico) appeals the partial
summary judgment ruling that it was required to pay an attorney's fee judgment entered
against Elizabeth Arreola and Maria De Arreola (the Arreolas) under the supplemental
payments provision of the Arreolas' policy. We decline to address Geico's arguments
on appeal because the partial summary judgment is a nonfinal, nonappealable order.
However, because the partial summary judgment impermissibly authorized execution
before the entry of a final judgment, we convert the appeal into a petition for writ of
certiorari and quash the order on review.
Elizabeth Arreola was driving a vehicle owned by Maria De Arreola when
she was involved in an accident with another vehicle. The driver of the other vehicle
filed a personal injury action against the Arreolas. Pursuant to the Arreolas' policy,
Geico defended the suit and assigned a salaried attorney employed by Geico. The
policy gave Geico the right to control the defense. During the litigation, the driver
served $25,000 proposals for settlement on both Elizabeth and Maria De Arreola.
Geico's attorney did not accept the proposals and allowed them to expire. Following a
jury trial, the driver obtained a verdict which resulted in a judgment against the Arreolas
for $80,428.32. The driver also obtained a judgment for attorney's fees against the
Arreolas for $121,000 pursuant to the proposal for settlement statute. See § 768.79,
Fla. Stat. (2014).
The Arreolas filed suit against Geico. Their complaint alleged that Geico
acted in bad faith and breached its fiduciary duty in handling the claim against the
-2- Arreolas, that the attorney assigned to the case by Geico was professionally negligent,
and that Geico was responsible for such negligence under the doctrine of respondeat
superior.
The Arreolas moved for summary judgment as to the attorney's fee
judgment entered against them, arguing that Geico was required to pay for these fees
under the additional payments provision of the Arreolas' policy—a theory of liability that
was not alleged in the complaint. The trial court granted the motion and entered the
partial summary judgment, finding that Geico was liable for the attorney's fee judgment
under the supplemental payments provision in the Arreola's policy. The judgment also
let execution issue.
Geico timely appealed the partial judgment, arguing that the trial court
erred in determining that it was liable for the attorney's fees assessed against the
Arreolas. This court issued an order to show cause as to why this appeal should not be
dismissed as from a nonfinal, nonappealable order.
Both parties insist that this court has jurisdiction over the final judgment.
They insist that the judgment was final in name and form and that it authorized
execution. They further argue that the breach of contract claim is separate and distinct
from the bad faith claim and that the two claims could be tried independently of one
another. In support of this, they allege that the claims are based on separate facts and
issues: the bad faith claim requires a determination that under the totality of the
circumstances Geico acted in bad faith in handling the claim, while the breach of
contract claim simply requires the interpretation of the policy.
-3- We disagree that the judgment is an appealable partial final judgment.
Florida Rule of Appellate Procedure 9.110(k) provides:
Except as otherwise provided herein, partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. A partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims. If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition.
However, "not all partial judgments are immediately appealable." Hallock v. Holiday Isle
Resort & Marina, Inc., 885 So. 2d 459, 461 (Fla. 3d DCA 2004). "[P]iecemeal appeals
will not be permitted where claims are interrelated and involve the same transaction and
the same parties remain in the suit." Jensen v. Whetstine, 985 So. 2d 1218, 1220 (Fla.
1st DCA 2008) (quoting S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974)).
This court considers three factors in determining whether a partial judgment may be
appealed under rule 9.110(k):
(1) Could the cause of action disposed of by the partial summary judgment be maintained independently of the other remaining causes of action? (2) Were one or more parties removed from the action when the partial summary judgment was entered? (3) Are the counts separately disposed of based on the same or different facts?
Universal Underwriters Ins. Co. v. Stathopoulos, 113 So. 3d 957, 959 (Fla. 2d DCA
2013) (quoting Dahly v. Dep't of Children & Family Servs., 876 So. 2d 1245, 1248 (Fla.
2d DCA 2004)). The second factor does not apply to this case. See id. at 960 n.2.
Further,
[a]n analysis of "interdependence" requires the court to look primarily to the facts upon which the claims are based. If the claims arise out of the same incident, the order dismissing some, but not all, of the counts will not constitute a final
-4- appeal, even if the counts involve separate and severable legal theories.
Biasetti v. Palm Beach Blood Bank, Inc., 654 So. 2d 237, 238 (Fla. 4th DCA 1995).
As a threshold matter we note that the partial judgment did not dispose of
any claims pleaded in the complaint. The Arreolas' claim that Geico was liable for the
attorney's fee judgment under the supplemental payments provision was first made in
their motion for summary judgment. Moreover, this claim is interdependent with at least
the bad faith claim which is still pending in the trial court. While the bad faith claim may
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
GOVERNMENT EMPLOYEES ) INSURANCE COMPANY, ) ) Appellant, ) ) v. ) Case No. 2D16-2831 ) ELIZABETH ARREOLA and MARIA ) DE ARREOLA, GEICO GENERAL ) INSURANCE COMPANY, and ) KIMBERLY LEE, ) ) Appellees. ) ___________________________________ )
Opinion filed June 2, 2017.
Appeal from the Circuit Court for Hillsborough County; Mark R. Wolfe, Judge.
B. Richard Young, Amanda L. Kidd, Stephanie A. McQueen, and Joshua J. Hartley of Young, Bill, Boles, Palmer & Duke, P.A., Pensacola, for Appellant.
Charles M. Schropp and Charles P. Schropp of Schropp Law Firm, P.A., Tampa; and Dennis G. Diecidue of The Diecidue Law Firm, P.A., Tampa, for Appellees Elizabeth Arreola and Maria De Arreola.
No appearance for remaining Appellees. CASE, JAMES R., Associate Senior Judge.
Government Employees Insurance Company (Geico) appeals the partial
summary judgment ruling that it was required to pay an attorney's fee judgment entered
against Elizabeth Arreola and Maria De Arreola (the Arreolas) under the supplemental
payments provision of the Arreolas' policy. We decline to address Geico's arguments
on appeal because the partial summary judgment is a nonfinal, nonappealable order.
However, because the partial summary judgment impermissibly authorized execution
before the entry of a final judgment, we convert the appeal into a petition for writ of
certiorari and quash the order on review.
Elizabeth Arreola was driving a vehicle owned by Maria De Arreola when
she was involved in an accident with another vehicle. The driver of the other vehicle
filed a personal injury action against the Arreolas. Pursuant to the Arreolas' policy,
Geico defended the suit and assigned a salaried attorney employed by Geico. The
policy gave Geico the right to control the defense. During the litigation, the driver
served $25,000 proposals for settlement on both Elizabeth and Maria De Arreola.
Geico's attorney did not accept the proposals and allowed them to expire. Following a
jury trial, the driver obtained a verdict which resulted in a judgment against the Arreolas
for $80,428.32. The driver also obtained a judgment for attorney's fees against the
Arreolas for $121,000 pursuant to the proposal for settlement statute. See § 768.79,
Fla. Stat. (2014).
The Arreolas filed suit against Geico. Their complaint alleged that Geico
acted in bad faith and breached its fiduciary duty in handling the claim against the
-2- Arreolas, that the attorney assigned to the case by Geico was professionally negligent,
and that Geico was responsible for such negligence under the doctrine of respondeat
superior.
The Arreolas moved for summary judgment as to the attorney's fee
judgment entered against them, arguing that Geico was required to pay for these fees
under the additional payments provision of the Arreolas' policy—a theory of liability that
was not alleged in the complaint. The trial court granted the motion and entered the
partial summary judgment, finding that Geico was liable for the attorney's fee judgment
under the supplemental payments provision in the Arreola's policy. The judgment also
let execution issue.
Geico timely appealed the partial judgment, arguing that the trial court
erred in determining that it was liable for the attorney's fees assessed against the
Arreolas. This court issued an order to show cause as to why this appeal should not be
dismissed as from a nonfinal, nonappealable order.
Both parties insist that this court has jurisdiction over the final judgment.
They insist that the judgment was final in name and form and that it authorized
execution. They further argue that the breach of contract claim is separate and distinct
from the bad faith claim and that the two claims could be tried independently of one
another. In support of this, they allege that the claims are based on separate facts and
issues: the bad faith claim requires a determination that under the totality of the
circumstances Geico acted in bad faith in handling the claim, while the breach of
contract claim simply requires the interpretation of the policy.
-3- We disagree that the judgment is an appealable partial final judgment.
Florida Rule of Appellate Procedure 9.110(k) provides:
Except as otherwise provided herein, partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. A partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims. If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition.
However, "not all partial judgments are immediately appealable." Hallock v. Holiday Isle
Resort & Marina, Inc., 885 So. 2d 459, 461 (Fla. 3d DCA 2004). "[P]iecemeal appeals
will not be permitted where claims are interrelated and involve the same transaction and
the same parties remain in the suit." Jensen v. Whetstine, 985 So. 2d 1218, 1220 (Fla.
1st DCA 2008) (quoting S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974)).
This court considers three factors in determining whether a partial judgment may be
appealed under rule 9.110(k):
(1) Could the cause of action disposed of by the partial summary judgment be maintained independently of the other remaining causes of action? (2) Were one or more parties removed from the action when the partial summary judgment was entered? (3) Are the counts separately disposed of based on the same or different facts?
Universal Underwriters Ins. Co. v. Stathopoulos, 113 So. 3d 957, 959 (Fla. 2d DCA
2013) (quoting Dahly v. Dep't of Children & Family Servs., 876 So. 2d 1245, 1248 (Fla.
2d DCA 2004)). The second factor does not apply to this case. See id. at 960 n.2.
Further,
[a]n analysis of "interdependence" requires the court to look primarily to the facts upon which the claims are based. If the claims arise out of the same incident, the order dismissing some, but not all, of the counts will not constitute a final
-4- appeal, even if the counts involve separate and severable legal theories.
Biasetti v. Palm Beach Blood Bank, Inc., 654 So. 2d 237, 238 (Fla. 4th DCA 1995).
As a threshold matter we note that the partial judgment did not dispose of
any claims pleaded in the complaint. The Arreolas' claim that Geico was liable for the
attorney's fee judgment under the supplemental payments provision was first made in
their motion for summary judgment. Moreover, this claim is interdependent with at least
the bad faith claim which is still pending in the trial court. While the bad faith claim may
require proof of additional facts, both claims sound in contract, see Am. Vehicle Ins. Co.
v. Goheagan, 35 So. 3d 1001, 1003 (Fla. 4th DCA 2010) ("In Florida a bad faith claim is
an action ex contractu."), seek recovery for overlapping damages (the attorney's fee
judgment), and arise from Geico's handling of a claim made against the Arreolas. Just
because the breach of contract claim centers around a disputed issue of law and the
bad faith claim focuses on disputed facts does not render the claims independent of one
another. See Pellegrino ex. rel Pellegrino v. Horwitz, 642 So. 2d 124, 126 (Fla. 4th
DCA 1994) ("[P]leading or proving differing legal theories does not establish that the
counts are separate and distinct for the purpose of appealability where the counts arise
from a set of common facts."). This is illustrated by the fact that the pending bad faith
claim has the potential of mooting the issue on appeal. That is, if it is determined that
Geico handled the claim in bad faith, the Arreolas will be able to recover for the
attorney's fee judgment entered against them regardless of whether it was covered by
the supplemental payments provision. See Cont'l Ins. Co. v. Jones, 592 So. 2d 240,
241 (Fla. 1992) ("[D]amages recoverable in a first-party bad faith suit under section
-5- 624.155, Florida Statutes (1989), are those damages which are the natural, proximate,
probable, or direct consequence of the insurer's bad faith.").
Accordingly, the partial summary judgment is a nonfinal, nonappealable
order. But this does not end our analysis. Under Florida Rule of Appellate Procedure
9.040(c), "[i]f a party seeks an improper remedy, the cause shall be treated as if the
proper remedy had been sought; provided that it shall not be the responsibility of the
court to seek the proper remedy." In its response to this court's order to show cause,
Geico raised the alternative argument that this court should exercise its certiorari
jurisdiction to quash the partial judgment because it authorizes execution prior to the
entry of a final appealable judgment. We agree.
Before an appellate court can exercise its certiorari jurisdiction, "[a]
petitioner must establish (1) a departure from the essential requirements of the law, (2)
resulting in material injury for the remainder of the trial (3) that cannot be corrected on
postjudgment appeal." Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d
646, 648 (Fla. 2d DCA 1995). The latter two requirements are jurisdictional. Id. at 649.
Geico has satisfied the jurisdictional prongs in this case because the partial judgment
subjects it "to execution at a time when it has no appellate remedy and therefore cannot
protect its assets by filing a supersedeas bond." E. Ave., LLC v. Insignia Bank, 136 So.
3d 659, 665 (Fla. 2d DCA 2014). Such an order also constitutes a departure from the
essential requirements of law. See id. (reasoning that "[p]ermitting execution prior to
completion of the litigation" is an "impropriety exceed[ing] the level of mere legal error").
Accordingly, we convert this appeal to a petition for writ of certiorari, grant the petition,
and quash the summary judgment under review.
-6- Petition for writ of certiorari granted; judgment quashed.
SLEET and LUCAS, JJ., Concur.
-7-