HENRY ROBINSON, APPELLANT,
v.
FLORIDA PENINSULA INSURANCE COMPANY, APPELLEE

Fla. 4th DCA | 2015-11-12
No. 4D14-1350
WARNER, MAY and KLINGENSMITH, JJ., concur.
178 So. 3d 947 Florida District Court of Appeal, Fourth District (2015) Positive Treatment
Cited by 7 cases

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Holding

The trial court departed from the essential requirements of law by abating the breach of contract and declaratory judgment action, effectively dismissing the complaint without adequate remedy.


Headnotes

[1] An order of abatement is properly reviewable by writ of certiorari because there is no adequate remedy for the delay caused by abatement after final judgment.

[2] A trial court departs from the essential requirements of law by issuing an abatement order that effectively amounts to a dismissal of the plaintiff's complaint.

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Facts & Procedural History

Robinson sued FPIC for breach of contract and declaratory judgment after FPIC exercised its option to repair damaged property but disputes arose over …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Petitioner, Henry Robinson, seeks cer-tiorari review1 of an order abating his *948breach of contract and declaratory judgment action against Florida Peninsula Insurance Company (“FPIC”). We find that the trial court departed from the essential requirements of law in granting an abatement under the circumstances of this case. We therefore grant Robinson’s petition, quash the abatement order, and remand for further proceedings.

Robinson had a homeowner’s insurance policy with FPIC, which provided FPIC an option to repair damaged property rather than make a cash payment. Robinson experienced damage to his home and reported it to FPIC. FPIC determined that the loss was covered, notified Robinson of its intent to exercise its option to repair, and attempted to coordinate repairs through its contractor. Robinson questioned the scope and sufficiency of the contractor’s proposed repairs and requested an appraisal. FPIC did not answer Robinson’s inquiries and ultimately denied coverage because of Robinson’s refusal to allow its contractor to complete the proposed repairs. According to the petition, Robinson subsequently completed most of the repairs at his own expense.

Robinson filed a complaint against FPIC alleging breach of contract for failing to pay for the covered loss. He also sought a declaratory judgment as to whether FPIC properly exercised its option to repair, whether he was required to allow FPIC’s contractor to repair his home without agreeing to the proposed repairs, and whether FPIC was entitled to deny coverage when he disputed the scope of the proposed repairs. FPIC did not answer the complaint, but instead filed a motion to abate the action and compel Robinson to comply with its right to repair his property. The trial court granted FPIC’s motion, stating: “The action is abated. Plaintiff shall comply with the Defendant’s right to exercise its option to repair the Plaintiffs damages.”

Certiorari review is appropriate when an order departs from the essential requirements of law, causing material injury throughout the remainder of the proceedings below and effectively leaving no adequate remedy on post-judgment appeal. See Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 454-55 (Fla.2012). “An order of abatement is properly reviewable by writ of certiorari, because there is no adequate remedy for the delay caused by abatement after final judgment.” Britamco Underwriters, Inc. v. Cent. Jersey Invs., Inc., 632 So.2d 138, 139 (Fla. 4th DCA 1994); see also Pecora v. Signature Gardens, Ltd., 25 So.3d 599, 599 (Fla. 4th DCA 2009).

We find that the trial court’s order in this case departs from the essential requirements of law because it effectively amounts to a dismissal of Robinson’s complaint. If Robinson has in fact completed the repairs, the abatement will likely be indefinite, even though FPIC conceded in the trial court that Robinson is entitled to a monetary judgment at least in the amount of its contractor’s estimate. See Arch Roberts & Co. v. Auto-Owners Ins. Co., 305 So.2d 882, 882-84 (Fla. 1st DCA 1974) (affirming summary judgment and finding insurer liable for payment to the insured in the amount of the appraisal for repair where insured prevented insurer from completing repairs). Robinson also may be entitled to dispute the amount of the estimate. See Fla. Ins. Guar. Ass’n v. Branco, 148 So.3d 488, 491-92 (Fla. 5th DCA 2014) (finding that a dispute over the method of a proposed repair to a home is *949an “amount of loss” issue rather than a coverage issue).

FPIC insists that Robinson’s action is premature and was properly abated because a hew contract was created when it exercised its option to repair, and Robin- . son must allow FPIC to repair his property before he can challenge the sufficiency of the repairs. See Drew v. Mobile USA Ins. Co., 920. So.2d 832, 835-36 (Fla. 4th DCA 2006). Robinson urges us to find that FPIC did not properly exercise its option to repair in the first place. .We decline to address these issues on.certiora-ri review, as they should be litigated in the trial court pursuant to Robinson’s action for declaratory judgment.

Under the circumstances of this case, we find that the trial court departed from the essential requirements of law in abating Robinson’s action. We therefore grant the petition, quash the abatement order, and remand for further proceedings consistent with this opinion.

Petition for writ of certiorari. granted; order quashed; remanded.

WARNER, MAY and KLINGENSMITH, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Diaz v. Fla. Peninsula Ins. Co., 204 So. 3d 460 (Fla. 4th DCA 2016)
    …the action and compel Diaz to comply with its right to repair. The trial court granted FPIC’s motion and entered an order abating Diaz’s action. Certiorari jurisdiction lies to review an order of abatement. See Robinson v. Fla. Peninsula Ins. Co., 178 So. 3d 947, 948 (Fla. 4th DCA 2015). “[T]o obtain a writ of certiorari, there must exist ‘(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 postjudgment ap…
  • People's Tr. Ins. Co. v. First Call 24/7, 46 Fla. L. Weekly D2651 (Fla. 4th DCA 2022)
    …the insurance contract.” Id. at *6 (quoting People’s Tr. Ins. Co. v. Santos, 320 So. 3d 910, 918 (Fla. 3d DCA 2021)); see also, e.g., Diaz v. Fla. Peninsula Ins. Co., 204 So. 3d 460, 462 (Fla. 4th DCA 2016); Robinson v. Fla. Peninsula Ins. Co., 178 So. 3d 947, 948 (Fla. 4th DCA 2015). Regarding the argument that post-loss duty number 5 entitled First Call to what People’s Trust would have paid its preferred contractor for repairs, the Tosar court applied canons of contract construction and found…
  • People's Tr. Ins. Co. v. First Call 24/7, 46 Fla. L. Weekly D2651 (Fla. 4th DCA 2022)
    …hed the insurance contract.” Id. at *6 (quoting People’s Tr. Ins. Co. v. Santos, 320 So. 3d 910, 918 (Fla. 3d DCA 2021)); see also, e.g., Diaz v. Fla. Peninsula Ins. Co., 204 So. 3d 460, 462 (Fla. 4th DCA 2016); Robinson v. Fla. Peninsula Ins. Co., 178 So. 3d 947, 948 (Fla. 4th DCA 2015). Regarding the argument that post-loss duty number 5 entitled First Call to what People’s Trust would have paid its preferred contractor for repairs, the Tosar court applied canons of contract construction and found that p…

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