24 Fla. L. Weekly Supp. 104b
Online Reference: FLWSUPP 2402ARANInsurance — Property — Sinkhole claim — Neutral evaluation process — Petition for writ of mandamus seeking to compel Department of Financial Services to facilitate neutral evaluation process for sinkhole damage to petitioners’ property is denied — Mandamus may not be used to resolve dispute as to whether statute requires that neutral evaluation process be made available in absence of sinkhole report or to enforce right to evaluation process under contract
CARLOS ARANGO AND LUISA GOMEZ, Petitioners, vs. FLORIDA DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF CONSUMER SERVICES, Respondent. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County, Circuit Civil Division. Case No. 16-CA-002640, Division D. March 29, 2016. Counsel: Christopher A. Tumminia, Austin & Laurato, PA, Tampa, for Petitioners. Florida Department of Financial Services, Division of Consumer Services, Tallahassee, pro se Respondent.
AMENDED ORDER DENYING PETITIONFOR WRIT OF MANDAMUS
(ISOM, Judge.) This case is before the Court on Petitioners’ Petition for Writ of Mandamus filed March 18, 2016. The petition asks this court to direct the Department to facilitate the neutral evaluation process under §627.7074(4), Florida Statutes (2010), in Petitioners’ case against their insurance company — Arango v. Sawgrass Mutual Ins. Co., Case no. 14-CA-2189. Petitioners contend that the 2010 statute is applicable to their sinkhole damage claim. The Department has denied Petitioners’ request to participate in the neutral evaluation process because Petitioners lacked the sinkhole report the Department determined to be a necessary prerequisite under the applicable version §627.7073, Fla. Stat.1 Petitioners assert that the report is not required under the 2010 version of §627.7074, and, accordingly, the Department must facilitate the neutral evaluation process. It is clear from Petitioners’ appendix that the parties disagree that the law requires that the neutral evaluation process be made available in the absence of a report. In response, Petitioners also contend that regardless of which version of the statute applies, the parties’ contract provides the same right to participate in the neutral evaluation process as is provided by the 2010 statute. Because mandamus may not be used to establish a party’s right to a requested act or to enforce rights under a contract, the petition must be denied.
Mandamus will issue only to enforce a clear legal right to performance of the requested act. State, ex. Rel. Cortez v. Bentley, 457 So. 2d 1072 (Fla. 2d DCA 1984). Mandamus may not, however, be used to establish such a right. Florida League of Cities v. Smith, 607 So. 2d 397, 400-401 (Fla. 1992). Where the parties disagree as to the applicable statute or whether that statute requires that a state agency or official perform a particular act, the parties’ rights remain to be determined, and the act is not ministerial. Nor is mandamus appropriate to enforce contractual rights. City of Tarpon Springs v. Planes, 30 So. 3d 693 (Fla. 2d DCA 2010)[35 Fla. L. Weekly D698a].2
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1Petitioners’ appendix Exhibit E.
2Significantly, the Department was not a party to the contract.
