16 Fla. L. Weekly Supp. 725b
Online Reference: FLWSUPP 168AFFIR
Insurance — Personal injury protection — Discovery — Appeals — Timeliness — Motion for rehearing of non-final order granting insured’s motion to enforce prior discovery order is unauthorized motion and did not toll time for filing petition for writ of certiorari challenging order, even where trial court entertained motion — Petition for writ of certiorari dismissed — Appellate attorney’s fees awarded to insured under section 627.428
AFFIRMATIVE INSURANCE CO., Petitioner, v. RENARDO JAMAL PAULDO, Respondent. Circuit Court, 15th Judicial Circuit (Appellate-Civil) in and for Palm Beach County. Case No. 502009CA007739XXXXMB. L.T. Case No. 502007CC002003XXXXMB, Division: ‘AY’. June 16, 2009. Appealed from the County Court in and for Palm Beach County, Judge Debra Moses Stephens. Counsel: Wendi M. Weiner and Jeffrey A. Rubinton, Rubinton & Laufer, LLC, Davie, for Petitioner. James C. Spitz, Law Office of James C. Spitz, West Palm Beach, for Respondent.
(PER CURIAM.) This case arose out of an automobile accident for which Affirmative Insurance Company refused insurance coverage under its insurance contract with Renardo Jamal Pauldo, its insured. Pauldo filed a motion to enforce court order on the basis of Affirmative’s failure to file a detailed privileged log. The trial court granted this motion on October 6, 2008, ordering Affirmative to produce the contents of the privilege log. On October 16, 2008, Affirmative filed a motion for rehearing. On January 28, 2009, the court denied the motion for rehearing. On March 2, 2009, Affirmative filed this petition for writ of certiorari, seeking review of the trial court’s order denying its motion for rehearing.
The order granting Pauldo’s motion to enforce prior court order is a non-final order. A litigant cannot expand the time for seeking review of a non-final order by filing a petition for writ of certiorari. State Dep’t of Revenue ex rel. Chambers v. Travis, 971 So. 2d 157, 160 n.3 (Fla. 1st DCA 2007). A motion for rehearing directed to a non-final order does not suspend the jurisdictional time for seeking review of the order by certiorari because rehearing is not authorized as to non-final orders. Coldwell Banker Commercial v. Wightman, 649 So. 2d 346 (Fla. 5th DCA 1995). Even if the trial court entertains such a motion, it does not toll the time for filing the petition. Princess Cruises, Inc. v. Edwards, 611 So. 2d 598 (Fla. 2d DCA 1993). As the original order was entered on October 6, 2008, the petition for writ of certiorari was untimely and is dismissed.
Pauldo requests appellate attorneys’ fees and costs as the prevailing party on this appeal pursuant to sections 627.428 and 627.736, Fla. Stat. The purpose of section 627.428 is to discourage insurers from disputing valid claims and to reimburse insureds for attorneys’ fees when they sue pursuant to the insurance contract. Allstate Ins. Co. v. Barnes Family Chiropractic, 875 So. 2d 14, 16 (Fla. 5th DCA 2004). The Petition for Writ of Certiorari is DENIED. Pauldo’s motion for appellate attorneys’ fees is GRANTED. Affirmative’s motion for attorneys’ fees is DENIED. (KELLEY, FRENCH and LEWIS, JJ., concur.)
