In a result that could have been predicted, Florida's First District Court of Appeal rejected Citizens Property Insurance Corporation's appeal in a recent decision. The Trial Court denied Citizens' Motion to Dismiss which apparently Citizens rested on an Affirmative Defense of Sovereign Immunity.
One San Perdido Association, Inc., a not-for-profit corporation, sued Citizens in the Trial Court "alleging that Citizens engaged in bad faith insurance practices." Citizens Property Insurance Corp. v. San Perdido Ass'n, Download Citizens Property Insurance Corp. v. San Perdido Ass'n (Fla. 1st DCA Case No. 1D09.6183, Opinion Filed October 6, 2010) PUBLIC ACCESS; STATED NOT FINAL, also published as 2010 WL 3894497 *1 (Fla. 1st DCA October 6, 2010)(Westlaw subscription required to access Westlaw). Citizens interposed its Affirmative Defense of Sovereign Immunity, which the Trial Court denied in an Order denying Citizens Motion to Dismiss based on that ground.
Following Florida precedent that an interlocutory Order like an Order Denying a Motion to Dismiss cannot be appealed under long-standing Florida Appellate Procedure, in a 2-to-1 decision, a panel of the First District rejected Citizens' appeal in this case. Id. All three Judges on the panel agreed to certify the following question in this case to the Supreme Court of Florida:
Whether, in light of the supreme court's ruling in Department of Education v. Roe, 679 So. 2d 756 (Fla. 1996), review of the denial of a motion to dismiss based on a claim of sovereign immunity should await the entry of a final judgment in the trial court?
Id. at *3. If appellate jurisdiction is perfected in the Supreme Court of Florida, allowing it to consider this certified question, perhaps there will be a ruling that Citizens -- and other governmental entities like it in other States -- will in the future have the legal capacity to defend Bad Faith Lawsuits by affirmatively alleging Sovereign Immunity, standing alone.
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