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Florida Third Dca Finds No Irreparable Harm Justifying Certiorari in Action Abated to Allow Insurer to Proceed on its Election to Repair

February 22, 2017

Hernandez v. Florida Peninsula Insurance Company, No 3D16—415, 2017 WL 697727 (Fla. 3d DCA Feb. 22, 2017)


The insureds sustained a water loss to their home and their insurer, Florida Peninsula, exercised its option under the policy to repair the damaged property, rather than issue a payment for the covered loss. The insureds refused to sign the work authorization and instead filed suit, alleging breach of contract for failure of Florida Peninsula to pay the claim, and a declaratory action alleging they were unsure of their rights under the policy, including scope of repairs.

Florida Peninsula moved to abate or stay the action, alleging it was premature. The insureds argued an abatement of the action was tantamount to dismissal of their declaratory action. The trial court disagreed with the insureds and granted the motion to abate or stay. The insureds filed a petition for writ of certiorari.


Did trial court’s order abating insureds’ breach of contract and declaratory action create irreparable harm to the insureds that would support a writ of certiorari.


No. Because the insurer acknowledged that after repairs are complete the insureds may petition to lift the abatement in order to allege their property was not returned to pre-loss condition, no irreparable harm was created by the abatement.


Unless a case meets the elements for a writ of certiorari (a departure from the essential requirements of the law resulting in material injury for the remainder of the case that cannot be corrected on post-judgment appeal), the appellate court does not have jurisdiction and will dismiss the petition. Here, the Third DCA dismissed the petition, finding the insureds had failed to make a prima facie showing of the latter two elements, also referred to as “irreparable harm.” In doing so, the appellate court considered whether the work authorization was a full release of liability in favor of the insurer that would preclude the insureds from petitioning to lift the abatement and re-open proceedings against the insurer. The Third DCA considered arguments made before the trial court and in response to the petition by Florida Peninsula that the insureds’ action was “premature” and that if “the property isn’t put back to its pre-loss condition,” the insureds would then have a “proper cause of action.” The court determined these arguments as an acknowledgment that the insureds could properly seek to lift the abatement in order to allege the property was not returned to its pre-loss condition, which would include any dispute over the scope of repair. In making its finding, the court looked to its decision in Fernandez-Andrew v. Florida Peninsula Ins. Co., Case No. 3D16-331 (Fla. 3d DCA Jan. 25, 2017) similarly addressing the same option to repair provision, and similar arguments on the record by counsel for the insurer. 


As long as insureds maintain the right to petition to lift a stay or abatement to dispute the scope of completed repairs, there is no irreparable harm in abating a breach of contract or declaratory action to allow an insurer to proceed on its contractual right on election to repair.