UNITED SERVICES AUTOMOBILE ASSOCIATION, PETITIONER,
v.
WILLIAM S. BYRD AND NELLIE BYRD, RESPONDENTS
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United Services Automobile Association sought certiorari review of a trial court order denying its motion to strike Count II of the complaint, which alleged infliction of mental distress and punitive damages based on breach of an insurance contract. The appellate court declined to issue the writ, finding that the defendant would have an adequate remedy by appeal after final judgment.
Certiorari jurisdiction was not demonstrated. The defendant had a full and adequate remedy by appeal after final judgment, and therefore the petition for certiorari was properly denied. The court did not reach the merits regarding whether Count II states a valid cause of action.
[1] A petition for common law certiorari is inappropriate when the petitioner has a full and adequate remedy by appeal after final judgment.
[2] A party seeking certiorari must demonstrate that the challenged order will cause irreparable harm not remediable by appeal.
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Join FLexlaw to unlock all legal intelligence“This petition for common law certiorari by the defendant/insurance company seeks to review an order of the trial court refusing to strike Count II of a second amended complaint.”
Establishes the nature of the proceeding and what order is under review.
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Join FLexlaw to unlock all legal intelligenceThe plaintiff filed a second amended complaint against an insurance company defendant. Count I alleged breach of an insurance contract. Count II, base…
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BERANEK, Judge.
This petition for common law certiorari by the defendant/insurance company seeks to review an order of the trial court refusing to strike Count II of a second amended complaint. This count alleges a cause of action against the insurance company defendant for compensatory damages for the infliction of mental distress and for punitive damages. Count I of the complaint alleges a cause of action for breach of an insurance contract. Count II appears to be based solely on breach of contract alleged in Count I. We decline to issue a writ of certiorari because we find that the defendant will have full and adequate remedy by appeal after final judgment if such becomes necessary. Santini Brothers, Inc. v. Grover, 338 So. 2d 79 (Fla. 4th DCA 1976); Siegel v. Abramowitz, 309 So. 2d 234 (Fla. 4th DCA 1975), and Solitron Devices, Inc. v. Reiland, 311 So. 2d 729 (Fla. 4th DCA 1975).
In denying certiorari we do not reach the merits and therefore do not determine whether Count II does state a cause of action for infliction of mental distress and for punitive damages.
The defendant argues that the trial court’s order refusing to dismiss the count for mental distress and punitive damages will cause injury for which a remedy by appeal will be inadequate. This argument is based on a spill-over theory. Defendant reasons that evidence of mental anguish and defendant’s net worth which may be proper under Count II will influence the jury under Count I. If such a demonstration can be made, it can be remedied by appeal after final judgment rather than based on a rather abstract argument that such harm may occur. We therefore conclude that certiorari jurisdiction has not been demonstrated.
CERTIORARI DENIED.
CROSS and DAUKSCH, JJ., concur.
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Colonial Penn Ins. Co. & John Larocca v. Blair, 380 So. 2d 1305 (Fla. 5th DCA 1980)…y turn out to be either moot or not reversible error. For us to take jurisdiction in this case signals a relaxation of well established and well reasoned hands-off policies of our appellate courts. See United Services Automobile Association v. Byrd, 370 So. 2d 1247 (Fla. 4th DCA 1979); Chalfonte Development Corporation v. Beaudoin, 370 So. 2d 58 (Fla. 4th DCA 1979); Santini Brothers, Inc. v. Grover, 338 So. 2d 79 (Fla. 4th DCA 1976); Siegel v. Abramowitz, 309 So. 2d 234 (Fla. 4th DCA 1975); Wright v. Sterling…
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Nat'l Bev. Suppliers, Inc. v. Esquire Prods. OF Fla., Inc., 493 So. 2d 551 (Fla. 4th DCA 1986)…the form of a plenary appeal following final judgment, if then needed. We deny the petition upon authority of Esman v. Board of Regents of the State of Florida, 425 So. 2d 156 (Fla. 1st DCA 1983), and United Services Automobile Association v. Byrd, 370 So. 2d 1247 (Fla. 4th DCA 1979). DENIED. DOWNEY, J., concurs. GLICKSTEIN, J., concurs specially with opinion. . We decline to create an anomaly by, on the one hand, declining to exercise jurisdiction and, on the other hand, attempting to decide or discuss t…
Authorities Cited
- Humphrey v. Seminole Cnty. Court, 309 So. 2d 234 (Fla. 4th DCA 1975)
- Santini Bros., Inc. v. Grover, 338 So. 2d 79 (Fla. 4th DCA 1976)
- Solitron Devices, Inc. v. Reiland, 311 So. 2d 729 (Fla. 4th DCA 1975)