JESSICA Y. CHOI, Petitioner,
AUTO-OWNERS INSURANCE COMPANY and HALEY P. BEUTLER, Respondents.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
for Writ of Certiorari to the Circuit Court for Hillsborough
County; Elizabeth G. Rice, Judge.
Kristin A. Norse and Stuart C. Markman of Kynes, Markman
& Felman, P.A., Tampa; and Joseph Bryant and A. Crosby
Crane of Morgan & Morgan, Tampa, for Petitioner.
Michael L. Forte of Rumberger, Kirk & Caldwell, P.A.,
Tampa, for Respondent Auto-Owners Insurance Company.
appearance for remaining Respondent.
underlying action is an automobile negligence action filed by
Jessica Y. Choi against alleged tortfeasor Haley P. Beutler
and Choi's underinsured motorist (UM) insurance carrier,
Auto-Owners Insurance Company. Choi seeks certiorari review
of an order granting Auto-Owners' motion to sever the
causes of action against the two defendants. We conclude that
because all three claims were inextricably interwoven, the
circuit court departed from the essential requirements of the
law by granting the motion to sever. Accordingly, we grant
automobile accident occurred in September 2014. According to
the amended complaint, Choi was a passenger in a car that was
struck by Beutler's vehicle. Choi was seriously injured,
and Beutler was underinsured. In count one, Choi sought
recovery from Beutler for the injuries she suffered in the
accident under a negligence theory. In count two, Choi sought
UM benefits from Auto-Owners for damages she suffered in
excess of the amount covered by Beutler's insurance
policy. In count three, Choi sought punitive damages against
Beutler based on a claim that Beutler was intoxicated to the
extent her faculties were impaired at the time of the
filed a motion to sever the UM claim against it from the
claims against Beutler in counts one and three. Auto-Owners
contended that Florida's nonjoinder statute, section
627.4136(1), Florida Statutes (2014), required separate
trials of Choi's claims against the tortfeasor and the UM
carrier. Auto-Owners also argued it was entitled to severance
under Florida Rule of Civil Procedure 1.270(b) to avoid
prejudice from the jury's discovering that Choi had
insurance coverage and that Beutler was intoxicated at the
time of the accident. The trial court granted the motion
finding "Auto-Owners' arguments to be the more
logical and better reasoned view of the current state of the
law and application of the rules of procedure in
petitioner seeking a writ of common law certiorari 'must
establish (1) a departure from the essential requirements of
the law, (2) resulting in material injury for the remainder
of the trial (3) that cannot be corrected on postjudgment
appeal.' " Rogan v. Oliver, 110 So.3d 980,
982 (Fla. 2d DCA 2013) (quoting Parkway Bank v. Fort
Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d
DCA 1995)). The second and third elements are jurisdictional,
and the failure to establish those elements requires
dismissal of the petition without considering the merits.
is an appropriate remedy for orders severing or bifurcating
claims which involve interrelated factual issues because
severance risks inconsistent outcomes." Minty v.
Meister Financialgroup, Inc., 97 So.3d 926, 931 (Fla.
4th DCA 2012) (quoting Kavouras v. Mario City Rest.
Corp., 88 So.3d 213, 214 (Fla. 3d DCA 2011)). Choi's
claims against Auto-Owners and Beutler involve more than
interrelated factual issues. In seeking recovery under the UM
benefits available to her, Choi has in essence the same cause
of action against her UM insurer, Auto-Owners, that she has
against the underinsured tortfeasor, Beutler, for damages for
bodily injury. See State Farm Mut. Auto. Ins. Co. v.
Kilbreath, 419 So.2d 632, 634 (Fla. 1982). Thus, an
order severing Choi's UM claim against Auto-Owners from
her claims against Beutler may risk inconsistent outcomes and
result in material injury that cannot be corrected on
merits, Choi argues that the severance order departs from the
essential requirements of the law because it rests on
Auto-Owners' argument that the nonjoinder statute applies
to require severance. However, Auto-Owners has changed its
argument from that which it presented below. It no longer
asserts that the nonjoinder statute requires severance of the
UM claim. Rather, it correctly recognizes that joinder is
permitted under the circumstances present here. But it
asserts that the trial court had the discretion to grant the
motion to sever under rule 1.270(b) because the prejudice to
Auto-Owners outweighs Choi's preference to have the
claims tried together.
1.270(b) generally gives courts the discretion to sever
claims "in furtherance of convenience or to avoid
prejudice." However, it is well-settled that it is a
departure from the essential requirements of the law to sever
claims that are inextricably interwoven based on the risk of
inconsistent verdicts. See Rocket Grp., LLC v.
Jatib, 174 So.3d 576, 576 (Fla. 4th DCA 2015);
Minty, 97 So.3d at 931; Kavouras, 88 So.3d
at 214; Bethany Evangelical Covenant Church of Miami,
Fla., Inc. v. Calandra, 994 So.2d 478, 479 (Fla. 3d DCA
2008); Maris Distrib. Co. v. Anheuser-Busch, Inc.,
710 So.2d 1022, 1024 (Fla. 1st DCA 1998). Thus, to the extent
the trial court relied on rule 1.270(b) to support its
decision, it was a departure from the essential requirements
of the law.
we note that severance would not avoid prejudice to
Auto-Owners arising from the claims against Beutler. First of
all, the jury would still learn that Choi had insurance
coverage in the severed UM action against her
insurer. Second, the jury would also learn that Beutler
was intoxicated at the time of the accident in the severed UM
action. As we stated previously, Choi's cause of action
against Auto-Owners for damages arising from Beutler's
negligence is at heart the same as her cause of action
against Beutler. While Choi need not establish entitlement to
punitive damages in her action against Auto-Owners, the facts
regarding Beutler's alleged intoxication will be relevant
to the issue of fault if Auto-Owners challenges liability, as
it asserts it will. See Frazee v. Gillespie, 124 So.
6, 9-10 (Fla. 1929) ...