In Citizens Property Insurance Corporation v. San Perdido Association, the Florida Supreme Court addressed the question of whether a non-final order can be reviewed on interlocutory appeal by the extraordinary writs of certiorari or prohibition.

Following Hurricane Ivan, Citizens, a government entity created by the state to be an insurer of last resort, was sued by San Perdido for refusing to pay in full certain claims it submitted to Citizens. After a favorable trial outcome was upheld in full on appeal, San Perdido brought suit against Citizens for a breach of contract and bad faith. Citizens filed a motion to dismiss, citing immunity from certain types of actions. The trial court denied the motion, citing exceptions to immunity in cases of willful tort and breach of contract as specified in section 627.351(6)(s), Florida Statutes. Citizens sought review at the appellate level by petitioning for a writ of certiorari or a writ of prohibition. The First District Court denied relief to Citizens. Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 46 So. 3d 1051 (Fla. 1st DCA 2010). An appeal to the Supreme Court followed.

The Supreme Court started by noting that interlocutory appeals of non-final orders are generally limited to those instances provided for in Rule 9.130(a)(3) of the Florida Rules of Appellate Procedure. While prohibition and certiorari review remains available, the Court pointed out that those extraordinary writs are only available in extreme circumstances. The Court proceeded to examine both writs that were sought by Citizens, and determined that neither was available.

With respect to writs of prohibition, the Court held that the limited waiver of sovereign immunity enacted by the legislature was a deciding factor. Before the state partially waived sovereign immunity in the 1970’s, the state’s sovereign immunity from suit acted as a jurisdictional bar on courts’ ability to entertain lawsuits against the state. Prohibition was available from the appellate courts to prevent trial courts from hearing such suits because trial courts had no jurisdiction to hear the cases, and irreparable harm would result if the state was denied its broad protections and was subjected to judicial proceedings. However, as the state partially waived sovereign immunity, the Supreme Court found that trial courts are not completely bereft of jurisdiction to hear suits against the state. Therefore, prohibition was not available to Citizens.

The Supreme Court also upheld the denial of Citizens’ petition for a writ of certiorari. It held that Citizens could not show that it would suffer irreparable harm if this suit were to continue, pointing out that potential costs of litigation and damage to reputation are not considered irreparable harm in certiorari analysis. Additionally, the Court pointed out that Citizens did not demonstrate that the trial court departed from the essential requirements of law in denying its motion to dismiss. To satisfy that prong, Citizens would have to show more than just a improper ruling on a legal question, especially where the legal question had not yet been clearly resolved in the courts.

The Supreme Court concluded by refusing to modify the list of non-final orders that are subject to interlocutory appeal, as it found that once there is a definitive ruling on whether Citizens is immune from the claims raised by San Perdido, such cases are unlikely to recur.

Immunity and the Appeal of Non-final Orders, Part I

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