final until disposition of timely filed motion for rehearing.
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
Dorothy 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.
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. FPL's motion sought dismissal of the complaint for
failure to state a claim upon which relief can be granted.
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.
FPL's argument that the tariff limits its liability
requires factual determinations regarding causation and the
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 Ass'n,
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 Court has amended Florida Rule of
Appellate Procedure 9.130 to allow for immediate review of a
nonfinal order determining that a party is not entitled to
certain types of immunity from suit, it has done so only
where the immunity can be determined "as a matter of
law." Fla. R. App. P. 9.130(a)(3)(C)(v)
("workers' compensation immunity"); Fla. R.
App. P. 9.130(a)(3)(C)(vii) ("absolute or qualified
immunity in a civil rights claim arising under federal
law"); Fla. R. App. P. 9.130(a)(3)(C)(x) ("immunity
under section 768.28(9) [individual immunity for government
agents acting in the scope of their employment]"); Fla.
R. App. P. 9.130(a)(3)(C)(xi) ("sovereign
immunity"). Nonfinal review is not available where
immunity turns on disputed issues of fact. See Reeves v.
Fleetwood Homes of Fla., Inc., 889 So.2d 812, 821-22
(Fla. 2004) (rejecting certiorari jurisdiction as well).
the trial court concluded that dismissal of the complaint was
not appropriate because FPL's claim that its tariff
limits its liability requires factual determinations. Because
FPL's claim of ...