final until disposition of timely filed motion for rehearing.
Appeal from a non-final order from the Circuit Court for
Miami-Dade County, David C. Miller, Judge. Lower Tribunal No.
Lieberman Straus & Shrewsberry and Scot E. Samis (St.
Petersburg), for appellant.
Barnard Law Offices and Garrett William Haakon Clifford, for
SALTER, FERNANDEZ and LINDSEY, JJ.
Property Insurance Corporation ("Citizens") appeals
non-final orders determining, as a matter of law, that four
counts in the complaint filed by the insureds (Marc and
Yanelys Sampedro, the "Insureds") are not barred by
Citizens' statutory sovereign immunity. The trial court
denied Citizens' motion to dismiss the four counts
seeking declaratory judgment "under Higgins v. State
Farm Fire & Cas. Co., 894 So.2d 5 (Fla. 2004)."
Citizens has not appealed (and jurisdictionally could not
appeal, at this juncture) the trial court's determination
that the Insureds' separate count for breach of the
residential insurance policy may proceed.
jurisdiction under Florida Rule of Appellate Procedure
9.130(a)(3)(C)(xi). Our standard of review on the sovereign
immunity issue is de novo. Plancher v. UCF Athletics
Ass'n, 175 So.3d 724, 725 n.3 (Fla. 2015).
reverse the order below for three independently sufficient
Higgins involved a private insurer (State Farm)
lacking any statutory grant of sovereign immunity. The case
stands for the unremarkable principle that the declaratory
judgment statutes "can be used to decide disputes in
respect to insurance policy indemnity coverage and defense
obligations," regarding an underlying tort claim and a
private insurer. 894 So.2d at 15. The Insureds, and the four
claims under consideration in the present case, do not seek
coverage declarations-the claims attempt to assert purported
private rights of action that do not exist.
Citizens is not a traditional private insurer. The Florida
Legislature conferred powers and duties on Citizens by
statute. Citizens may be characterized as a
governmentally-created, not-for-profit insurer for eligible
property owners otherwise unable to procure a policy in the
private marketplace. See Citizens Prop. Ins. Corp. v.
Perdido Sun Condo. Ass'n, 164 So.3d 663, 667 (Fla.
2015) (applying the exceptions to Citizens' statutory
sovereign immunity to exclude statutory first-party bad faith
claims asserted under another provision of the Florida
statute conferring sovereign immunity on Citizens contains
only five specific exceptions (subsections 627.351(6)(s)1.a.
through 1.e.). The present case involves a claim by the
Insureds against Citizens for water damage after a shower pan
leak. The Insureds' residential homeowners' policy
issued by Citizens and subsection 1.e of the immunity statute
expressly allow a breach of contract action (liability in an
action "for breach of contract or for benefits under a
policy issued by the corporation"). But neither the
policy nor the statute authorize creatively-drafted private
claims for "breach of the duty to adjust" in other
provisions of the Florida Insurance Code.
in a motion for reconsideration filed after the trial
court's initial denial of Citizens' motion to dismiss
the four counts, Citizens directed the trial court's and
the Insureds' attention to the Fourth District's
opinion in Citizens Property Insurance Corp. v.
Mendoza, 250 So.3d 716 (Fla. 4th DCA 2018). The
Mendoza decision was issued July 5, 2018. The case
addressed similar claims for declaratory relief filed by the
same law firm representing the Insureds in the present case.
The motion for reconsideration bringing the Mendoza
decision to the trial court's attention was binding on
the trial court in the absence of binding authority from this
Court; Pardo v. State, 596 So.2d 665, 666 (Fla.
1992) ("Thus, in the absence of interdistrict conflict,
district court decisions bind all Florida trial
filed its eleven-page motion for reconsideration based on
Mendoza on July 31, 2018, attaching a copy of the
decision. The trial court entered its order denying the
motion to dismiss the four counts in question that day. The
next day, the trial court denied the motion for
reconsideration in an unelaborated order and without a
hearing. The Insureds' ...