Petition for writ of certiorari to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Martin J.
Bidwill, Judge; L.T. Case No. 18-004415 CACE.
H. Singer, Evan Ezray, Luis Suarez and Mark Heise of Boies
Schiller Flexner LLP, Fort Lauderdale; and Eric Hoecker of
Florida Power & Light Company, Juno Beach, for petitioner.
F. Easley of Easley Appellate Practice PLLC, Miami; and Julie
W. Allison of Julie W. Allison, P.A., Hollywood, for
respondent Rehabilitation Center At Hollywood Hills, LLC.
Florida Power and Light Company (FPL) petitions for
certiorari review from an order that denied its motion to
dismiss a complaint filed by a former resident of a nursing
home— the Rehabilitation Center at Hollywood Hills,
LLC— who was allegedly injured following the loss of
power in Hurricane Irma. FPLs motion sought dismissal of the
complaint for failure to state a claim upon which relief can
this proceeding, FPL argues that it is immune from suit under
a provision in its tariff that provides:
2.5 Continuity of Service . The Company will use
reasonable diligence at all times to provide continuous
service at the agreed nominal voltage, and shall not be
liable to the Customer for complete or partial failure or
interruption of service, or for fluctuations in voltage,
resulting from causes beyond its control or through the
ordinary negligence of its employees, servants or agents.
The Company shall not be liable for any act or omission
caused directly or indirectly by strikes, labor
troubles, accident, litigation, shutdowns for repairs or
adjustments, interference by Federal, State or Municipal
governments, acts of God or other causes beyond its
(Emphasis supplied). FPL maintains that this provision
broadly immunizes it from claims arising from "acts of
God"— such as a hurricane.
trial court concluded that it "is not convinced that the
electric tariff requires dismissal at this stage of the
proceedings, based merely on the face of the complaint. FPLs
argument that the tariff limits its liability requires
factual determinations regarding causation and the proffered
dismiss the petition for failure to establish irreparable
harm necessary for certiorari jurisdiction. The Florida
Supreme Court has made clear that the denial of a motion to
dismiss raising an alleged immunity from suit is not subject
to review by certiorari or any other extraordinary writ.
Citizens Prop. Ins. Corp. v. San Perdido Assn,
Inc., 104 So.3d 344, 352-53 (Fla. 2012). When public
policy favors immediate review of a non-appealable, nonfinal
order, the proper course is for the Florida Supreme Court to
amend the rules of appellate procedure with input from the
appellate rules committee. Id. ; see also
Keck v. Eminisor, 104 So.3d 359, 365-66 (Fla. 2012);
Tucker v. Resha, 648 So.2d 1187, 1189-90 (Fla.
1994). Pursuant to this binding caselaw, we lack jurisdiction
to review the order at issue.
the Florida Supreme ...