DAVID SLADE, APPELLANT,
v.
FEDERATED NATIONAL INSURANCE COMPANY, APPELLEE

Fla. 4th DCA | 2005-06-22
No. 4D04-1463
STONE and MAY, JJ., concur.
904 So. 2d 623 Florida District Court of Appeal, Fourth District (2005) Positive Treatment
Cited by 4 cases

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Synopsis

An insured sued his motor vehicle insurance carrier on behalf of a proposed class alleging violations of repair and replacement provisions. The trial court dismissed the class action allegations for legal insufficiency, and the insured appealed. The appellate court dismissed the appeal for lack of jurisdiction, holding that the order dismissing class allegations does not fall within the plain meaning of the jurisdictional provisions for non-final review of class action orders.


Holding

The order is not reviewable because it does not fall within the plain meaning of Rule 9.130(a)(3)(C)(vi) or (a)(6). The order does not determine that a class should not be certified nor does it deny a motion to certify a class; rather, it dismisses the class allegations based on legal insufficiency of the pleading before any motion to certify was made.


Headnotes

[1] An order dismissing class action allegations for legal insufficiency is not immediately appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi) or 9.130(a…

[2] Florida Rule of Appellate Procedure 9.130 restricts non-final appellate review to enumerated categories, and these categories must be interpreted according to their plain…

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Key Quotes

“The thrust of rule 9.130 is to restrict the number of appealable nonfinal orders. The theory underlying the more restrictive rule is that appellate review of nonfinal judgments serves to waste court resources and needlessly delays final judgment.”

Establishes the policy basis for strictly interpreting Rule 9.130 jurisdictional provisions

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Facts & Procedural History

David Slade, an insured under a motor vehicle collision coverage policy, filed suit against Federated National Insurance Company on behalf of himself …

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Opinion of the Court
FARMER, C.J.

FARMER, C.J.

The insured under a motor vehicle policy providing for collision coverage sued the insurance carrier on behalf of himself and a proposed class of similar policy holders for violations of the repair and replacement provisions. The insurance carrier moved to dismiss the class action allegations on the grounds that they were not sufficient to maintain a class action. After two hearings, the trial court dismissed the class action allegations with prejudice.

The insured appealed the dismissal to this court, arguing that rule 9.130(a)(3)(C)(vi) and (a)(6) give us jurisdiction. Subdivision (a)(3)(C)(vi) allows non-final review of orders determining “that a class should be certified.” Subdivision (a)(6) allows non-final review of orders “that deny motions to certify a class.” The order in question grants a motion implicitly made under rule 1.140(b)(6) and dismisses class action allegations. It does not determine that a class should not be certified. Nor does it deny a motion to certify a class. We do not think the order is reviewable.

We repeat the analysis we made in Jenne v. Maranto, 825 So. 2d 409 (Fla. 4th DCA 2002), reh’g denied (Aug 21, 2002):

Our jurisdiction has been invoked under rule 9.130. As the supreme court explained about nonfinal review under this rule:
“The thrust of rule 9.130 is to restrict the number of appealable nonfinal orders. The theory underlying the more restrictive rule is that appellate review of nonfinal judgments serves to waste court resources and needlessly delays final judgment.”

Travelers Ins. Co. v. Bruns, 443 So. 2d 959, 961 (Fla.1984). The enumerated categories of permissible nonfinal review stated in rule 9.130 must be limited to their plain meaning. 443 So. 2d at 960 (“Petitioner’s argument is contrary to the plain meaning of the rule--”). The rule does not authorize judges to enlarge its provisions to permit review of nonfinal orders not specified within its provisions. See BE & K Inc. v. Seminole Kraft Corp., 583 So. 2d 361, 364 (Fla. 1st DCA 1991) (“Piecemeal review of non-final orders prior to final disposition of all issues must be strictly limited as much as possible to conserve the sparse judicial resources available at the appellate level.”).

Jenne, 825 So. 2d at 412-13. Appellant invites us, in effect, to create jurisdiction over orders dismissing class action allegations for legal insufficiency by simple construction of the rule’s cited provisions. He argues that orders dismissing (or striking, for the effect is identical) class action alie- gations are within the broad purposes of allowing non-final review of the class action orders already permitted and thus it is no stretch to recognize review of the present order. We disagree. The order involved here is not within the plain meaning of the two provisions on which appellant relies. The only basis for dismissal raised by the motion to dismiss under rule 1.140 was the legal sufficiency of the pleading for class relief. Appellant had not moved to certify the class. Indeed the issue of class certification usually requires an evidentiary hearing, but the motion to dismiss presented only the legal sufficiency of the bare pleading without any supporting evidence.

Upon final review we might agree with appellant that it was error to dismiss the class action allegations without first allowing an amendment to attempt to cure any perceived defects in the class as pleaded. We may even agree that it was also error to treat the motion to dismiss as the functional equivalent of a motion to deny class certification because that issue could not have been addressed or determined upon the mere filing of the complaint and the motion to dismiss. We are confident, however, that the trial judge will be sensitive to these issues upon remand and allow appellant to try again.

Appeal Dismissed.

STONE and MAY, JJ., concur.


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Citator

Cited By

  • Gleicher v. Claims Verification Inc., 908 So. 2d 560 (Fla. 4th DCA 2005)
    …Co. v. Bruns, 443 So. 2d 959, 961 (Fla.1984). For those reasons, case law has not expanded rule 9.130’s jurisdictional limitations beyond the plain language of the rule’s list of appealable, non-final orders. E.g. Slade v. Federated Nat’l Ins. Co., 904 So. 2d 623, 624-25 (Fla. 4th DCA 2005); Jenne v. Maranto, 825 So. 2d 409, 412-13 (Fla. 4th DCA 2002). For example, an order deferring ruling on a request for injunctive relief is generally1 not reviewable under rule [*563] 9.130(a)(3)(B) because such a deferr…
  • Alain Murga v. United Prop. & Cas. Ins. Co., 941 So. 2d 482 (Fla. 3d DCA 2006)
    …pellant’s class action allegations. . There is nothing to indicate that the trial court's dismissal of the complaint was based on Rule 1.140, which applies to dismissals for failure to state a cause of action. Cf. Slade v. Federated Nat’l Ins. Co., 904 So. 2d 623, 624 (Fla. 4th DCA 2005)(holding that an order granting a motion to dismiss class action allegations on the grounds that they are not sufficient to maintain a class action is implicitly a Rule 1.140(b)(6) motion, not a denial of class certification,…

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