28 Fla. L. Weekly Supp. 454a

Online Reference: FLWSUPP 2806ARZU

Insurance — Personal injury protection — Appeals — Non-final orders — Order granting motion to amend complaint to include claim for bad faith is not reviewable by certiorari where order does not result in irreparable harm that cannot be addressed on plenary appeal — No merit to argument that order departed from essential requirements of law because it was entered after insurer confessed judgment — Confession of judgment did not moot amount of damages that could be awarded to medical provider

GEICO INDEMNITY COMPANY, Petitioner, v. ALL X-RAY DIAGNOSTIC SERVICES, a/a/o Regla Arzuaga, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2020-48-AP-01. L.T. Case No. 2016-9781 SP 26. August 12, 2020. On Petition for Writ of Certiorari from Miami-Dade County Court, Hon. Lawrence D. King, Judge. Counsel: Scott W. Dutton and Rebecca O’Dell Townsend, Dutton Law Group, PA, for Petitioner. Stuart L. Koenigsberg, A Able Advocates — Stuart L. Koenigsberg, P.A., for Appellee.

(Before TRAWICK, WALSH and SANTOVENIA, JJ.)

OPINION

(PER CURIAM.) Geico Indemnity Company (“Geico”) petitions this Court to issue a writ of certiorari to quash the trial court’s order granting leave to amend a complaint. After Geico filed a “Confession of Judgment” in the amount of $99.99, Respondent, All X-Ray Diagnostic Services, as assignee of Regla Arzuaga (“All X-Ray”), filed a motion to amend its complaint to include a claim for bad faith, requesting the remaining amount it claimed was due in the underlying lawsuit, an amount less than $2500.00. Because Geico has failed to establish that the order granting leave to amend caused irreparable harm which could not be remedied on appeal, we deny this petition.

Background

All X-Ray treated Regla Arzuaga for her injuries related to a car accident occurring on or about September 11, 2016. Ms. Arzuaga assigned her Geico Personal Injury Protection (“PIP”) benefits to All X-Ray, and All X-Ray demanded $1,153.73 in overdue PIP benefits. On December 29, 2016, All X-Ray filed suit.¹ Geico failed to comply with its discovery obligations for over two years, leading to an order compelling discovery on February 13, 2019. Seven months later, still without responding to discovery, Geico filed a “Notice of Filing Confession of Judgment” in the amount of $99.99 in benefits and $17.90 in interest.

On September 11, 2019, All X-Ray filed a motion for leave to file an amended complaint for bad faith. Specifically, the amended complaint alleged damages “that [do] not exceed $2500.” Its claim for bad faith alleges that Geico failed to offer a reasonable explanation for denying the full claim, failed to make a good faith attempt to settle the claim, and failed to act fairly and honestly. On September 18, 2019, after filing its motion to amend but four months before setting it for hearing, All X-Ray filed a civil remedy notice of violation of section 624.155, Florida Statutes, a condition precedent for filing a claim for bad faith. Geico never responded to this notice. On January 9, 2020, the trial court granted the motion to amend. Geico moved for rehearing or reconsideration on July 17, 2020, and rehearing was denied on February 3, 2020.

The standard of review of a petition for writ of certiorari is as follows:

As a general rule, a petitioner seeking certiorari relief must establish that the trial court’s nonfinal order “departs from the essential requirements of law and thus causes material injury to the petitioner throughout the remainder of the proceedings, effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 95 (Fla. 1995) [ 20 Fla. L. Weekly S217a]; Robles v. Baptist Health South Florida, Inc., 197 So.3d 1196, 1199 (Fla. 3d DCA 2016) [ 41 Fla. L. Weekly D1618c].

Robins v. Colombo, 253 So. 3d 94, 95 (Fla. 3d DCA 2018) [43 Fla. L. Weekly D1821a].

“ ‘The threshold question that must be reached first [when determining whether to grant certiorari] is whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm.’ ” See Safeco Ins. Co. of Illinois v. Rader, 132 So. 3d 941 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D425c] (quoting Rodriguez v. Miami-Dade County, 117 So. 3d 400, 404 (Fla. 2013) [38 Fla. L. Weekly S445a]). The petitioner fails to establish this threshold element and we must therefore deny this petition.

An order granting a motion to amend to include a claim for bad faith does not, without more, result in irreparable harm which cannot be addressed by plenary appeal. In an en banc decision, the Third District Court of Appeal explained in State Farm Fla. Ins. Co. v. Seville Place Condo. Ass’n, Inc., 74 So. 3d 105 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D1558a] that a trial court order permitting an amended complaint including a claim for bad faith does not establish irreparable harm to support a writ of certiorari. Finding “[n]o irreparable injury has yet occurred, and none is certain to follow,” the district court denied certiorari. Id. at 108. The court further “recede[d] from the broad holding that ‘certiorari is available to challenge a premature bad faith claim or premature bad faith discovery.’ ” (receding from its prior holding in XL Specialty Ins. Co. v. Skystream, Inc., 988 So. 2d 96, 98 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1790b]).

Here, All X-Ray claims damages in its amended complaint which do not exceed $2,500. Discovery on the bad faith issues has not yet begun. Because damages are minimal, there will be no likelihood that All X-Ray will try to engage in invasive financial discovery of the insurer. The only harm claimed by Geico is that it be “required to litigate two legally insufficient causes of action after having confessed judgment.” Such harm does not constitute the kind of irreparable harm necessary to justify granting the extraordinary remedy of certiorari relief. See Rader, 132 So. 3d at 947 (cost, delay, and the burden of having to litigate a potentially unnecessary bad faith does not constitute irreparable harm to justify certiorari).

Moreover, in Riano v. Heritage Corp. of So. Fla., 665 So. 2d 1142, 1145 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D147b], the court explained,

‘[c]ertiorari is not designed to serve as a writ of expediency and should not be granted merely to relieve the petitioners seeking the writ from the expense and inconvenience of a trial.’ Whiteside v. Johnson, 351 So.2d 759, 760 (Fla. 2d DCA 1977)). See also Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987) (litigation of a non-issue and inconvenience and expense of same not the type of harm sufficient to permit certiorari review); Continental Equities, Inc. v. Jacksonville Trans. Auth., 558 So.2d 154 (Fla. 1st DCA 1990) (fact that if ruling on damages was incorrect, matter would have to be retried after appeal and at great expense to the parties did not entitle petitioner to writ of certiorari to review the ruling); Kessel Constr. Corp. v. Clark-Haney Dev. Team, 487 So.2d 1123 (Fla. 4th DCA 1986) (Glickstein, J., concurring) (cost of trial and appeal is not the kind of damage certiorari is intended to forestall); Leibman v. Sportatorium, Inc., 374 So.2d 1124 (Fla. 4th DCA 1979) (fact that petitioner might have to go through a needless trial did not constitute material injury of an irreparable nature); Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975) (fact that petitioner would have gone through trial under the burden of the order complained of, would incur substantial expenses for experts and case might need to be retried was not sufficient to show irreparable harm).

Because Geico fails to establish the threshold requirement of demonstrating irreparable harm, this petition must be denied.

Furthermore, even had Geico demonstrated irreparable injury, we would still deny certiorari because the order granting leave to amend is not a departure from the essential requirements of law. Geico argues, as did the insurer in Rader, that the trial court departed from the essential requirements of law because once Geico confessed judgment, the trial court lost jurisdiction to do anything other than enter a final judgment, as there was no further judicial labor to perform. In rejecting this point, the trial court relied upon Fridman v. Safeco Ins. Co. of Illinois, 185 So. 3d 1214 (Fla. 2016) [41 Fla. L. Weekly S62a].

In Fridman, a claimant in an uninsured motorist (“UM”) action did not accept the insurer’s confession of judgment for policy limits — but instead was allowed to proceed to trial for a jury determination of full damages for the loss, in excess of the UM policy limits. The jury returned a verdict in excess of the policy limits and the trial judge entered a partial judgment for policy limits — the amount confessed by the insurer. The trial court then reserved jurisdiction to allow the claimant to file an amended complaint for bad faith. If the claimant succeeded in his bad faith claim, final judgment would be rendered in the amount of the jury’s verdict, which was in excess of the policy limits. On appeal, the insurer argued — as does Geico here — that its confession of judgment² relieved the trial court of its jurisdiction to do more than enter judgment for the policy limits. Instead, the Florida Supreme Court in Fridman explained:

the amount of damages in the UM case does not become moot by virtue of an insurer’s “confession of judgment” and tendering of the policy limits. Such a position as that taken by the Fifth District majority would “countenance the actions of an insurer that confesses judgment at the last hour in an effort to avoid a trial that would reveal, through the jury’s verdict, the true extent of the insured’s injuries and provide a basis to award damages in the inevitable bad faith action the insurer foresaw on the horizon.” [Safeco Ins. Co. of Illinois v. Fridman, 117 So. 3d 16 (Fla. 5th DCA 2013) [39 Fla. L. Weekly D425c], decision quashed, 185 So. 3d 1214 (Fla. 2016)] at 29 [41 Fla. L. Weekly S62a].

Likewise, Geico’s “confession of judgment” here did not moot the amount of damages which could be awarded to the plaintiff here. We are mindful of the decision in Rodante v. Fid. Nat. Ins. Co., 725 So. 2d 1151 (Fla. 2d DCA 1998) [23 Fla. L. Weekly D2480a], in which the district court held that no bad faith claim could lie once the insurer pays the insured the limits of liability for PIP coverage within the 60-day statutory cure period to file a bad faith action. However, the insurer here did not pay the limits of its liability to the insured. It did not even pay the full claim demanded. Rather, the insurer ‘confessed” to a judgment of $99.99. And it did not respond within 60 days to All X-Ray’s statutory notice containing the amount of the underpayment. Further, the amended complaint does not seek an amount in excess of PIP policy limits, but rather, merely the remainder of the overdue claim. Whether captioned as a “bad faith” claim or just the continuation of the lawsuit to amend the claim for the total damages owed, this amended claim was not rendered moot by the insurer’s $99.99 confession. Accordingly, there is no departure from the essential requirements of law in permitting All X-Ray to amend its complaint.

For these reasons, we deny the petition for writ of certiorari. (TRAWICK, WALSH and SANTOVENIA, JJ., concur.)

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¹In its Statement of Claim under “General Allegations,” All X-Ray pled that damages do not exceed $99.99. However, in its count for breach of contract, All X-Ray claims that Geico failed to make full payment of its claim for $4,275. In its counts for declarative relief, All X-Ray claims supplemental relief for unpaid PIP benefits. Geico opines that its “confession” for $99.99 moots the litigation, binding All X-Ray strictly to its general statement that damages “do not exceed $99.99” in its small claims pleading. All X-Ray was absolutely entitled to amend its Statement of Claim to include the full amount of the unpaid PIP claim which, in effect, was what the amended complaint for Bad Faith purports to do. See Spectrum Interiors, Inc. v. Exterior Walls, Inc., 65 So. 3d 543 (Fla. 5th DCA 2011) [36 Fla. L. Weekly D1292a] (abuse of discretion to deny motion to amend complaint to allege special damages. “[A]s a general rule, leave to amend should be freely granted unless it appears that allowing the amendment would prejudice the opposing parties, the privilege to amend has been abused, or amendment would be futile”).

² In Fridman, the insurer’s confession was for policy limits, while here, Geico confessed to $99.99 — an amount All X-Ray pled in a preliminary statement in its initial pleading — an amount which conflicted with the amounts referenced in the prayers for relief. Further, the demand letter put Geico on notice that the claim was for the difference between what it paid and what was charged, or $1,153.73. Thus, Geico’s “confession of judgment” appears to be a tactic in which “confessing” to the “$99.99” amount would curtail the litigation without having to defend the underpayment.