8 Fla. L. Weekly Supp. 193a
Insurance — Uninsured motorist — Court’s prior order granting emergency motion to stay execution of judgment was not intended to act as stay against Insurance Commissioner taking action against insurer as provided by statutes authorizing revocation of certificate of authority for failure to satisfy judgment for period of more than sixty days
JILL HORKEIMER, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 99-007426 (09). November 9, 2000. Robert Lance Andrews, Judge.
ORDER
THIS CAUSE having come before the Court on Plaintiff Jill Horkeimer’s Emergency Motion to Lift Stay of Execution of Final Judgment, and the Court having considered same, having heard argument of counsel, and being otherwise duly advised in premises, finds and decides as follows:
On August 22, 2000, Defendant State Farm filed an emergency motion to stay execution of judgment, after learning that the Plaintiff had requested the Insurance Commissioner for the State of Florida to revoke State Farm’s certificate of authority for failure to satisfy the judgment for the Plaintiff for a period of more than 60 days. During the hearing on the motion, this Court was made to understand that State Farm had been in contact with someone from the Insurance Commissioner’s office and they had agreed that no proceedings to revoke State Farm’s certificate would take place pending any stay that this Court granted. This Court granted the motion to stay execution of judgment, pending its decision on State Farm’s motion to vacate default and motion to set aside final judgment.
On October 25, 2000 this Court held a hearing on State Farm’s motions to conform judgment to insurance policy limits, quash service of process, vacate default and set aside final judgment. At the hearing, State Farm informed the Court that it was not arguing the motion to quash service and it was abandoning the defense of improper service. As a result, this Court, being of the opinion that there was a valid judgment in light of the waiver of the most important argument available to State Farm, decided the merits of the motions to conform judgment to insurance policy limits, vacate default and set aside final judgment. This Court agreed to vacate the clerk’s default but denied the motions to conform judgment to insurance policy limits and set aside final judgment [8 Fla. L. Weekly Supp. 95a].
On November 6, 2000, Plaintiff Jill Horkeimer filed an emergency motion to lift stay of execution of final judgment. In the motion, Plaintiff specifically stated that she has never made any attempts to execute on the final judgment, but merely contacted the Department of Insurance to inform it of State Farm’s violation of §§627.427(2) and 624.418(1)(c). Plaintiff requests the order lifting the stay of execution of judgment in order to enable the Department of Insurance to proceed against State Farm with any action as provided in the aforementioned statute.
On November 8, 2000 this Court held a hearing on Plaintiff’s emergency motion to lift stay of execution of judgments. State Farm opposes the motion, arguing that the aforementioned statutes did not apply because State Farm did not receive notice of the judgment.1 State Farm also argued that the posting of the supersedeas bond as directed by this Court in the order of August 24, 2000 effects an automatic stay of the subject judgment pursuant to Rule 9.310(b) Fla. R. App. P.2 However, the bond which was posted was pursuant to Rule 1.550 Fla. R. Civ. P.which deals with executions.3 At this point State Farm did inform the Court that a Notice of Appeal was filed this date. State Farm asserted that it was appealing this Court’s order on the basis that there was a void judgment even though it had waived its defense of improper service.4 Inasmuch as State Farm did file a notice of appeal, this Court agreed to treat the bond which was previously posted as a supersedeas bond pursuant to Rule 9.310(b) Fla. R. App. P. This court pointed out to State Farm that although it would treat the bond as an appellate bond, the stay would affect the judgment for money only.5 State Farm, in turn, asserts that the bond is an automatic stay and therefore bars any administrative remedy available to the Insurance Commissioner under §§627.427 and 624.418 Florida Statutes.
There appears to be confusion as to what our original order actually stayed. While this Court did indeed grant the emergency motion to stay execution of judgment, the order was never intended to act as a stay against the Insurance Commissioner taking action as provided by the aforementioned statutes. This Court is without authority to order the Insurance Commissioner to refrain from performing the duties of office. Any attempt by this Court to do so would violate separation of powers. That the Insurance Commissioner did not take any action as a result of this Court’s order, was merely the extension of a courtesy to a coexistent branch of the government. Therefore, it was never the purpose of this Court, in granting the motion, to order any action by the Insurance Commissioner be stayed.6
State Farm’s motions to vacate default and set aside final judgment, which were the underlying basis for the stay, have now been decided. Furthermore, the Plaintiff has never attempted to execute on the judgment, and is precluded from doing so now pending the outcome of State Farm’s appeal. Finally, the stay of execution granted by this Court to State Farm did not, and could not act as a stay against the Insurance Commissioner moving forward with any available administrative remedies. Therefore, in this Court’s opinion, the stay granted by this Court on August 25, 2000 is moot, and there is no basis to refuse to grant the relief requested in Plaintiff’s motion.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Emergency Motion to Vacate the Stay of Execution of Judgment is GRANTED.
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1This Court’s reading of §627.427 leads it to the belief that no notice is required to be given to an insurance company upon the entry of a judgment against it.
2Rule 9.310(b)(1) Fla. R. App. P. provides in pertinent part that “[i]f the order is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review, without the necessity of a motion or order, by posting a good and sufficient bond . . . .”
3Rule 1.550(b) Fla. R. Civ. P. provides that “[t]he court before which an execution or other process based on a final judgment is returnable may stay such execution or other process and suspend proceedings thereon for good cause on motion and notice to all adverse parties.”
4This Court must note that in light of the waiver of the defense of improper service and in light of the fact that State Farm never responded to the multitude of letters and notices that State Farm received, this Court is of the opinion that the judgment could easily be considered a consent judgment.
5Indeed, Rule 9.310(b)(1) applies only to judgments when the only relief granted is the payment of money. When monetary or other relief are granted in the same judgment, then the Rule 9.310(b)(1) exception does not apply and a party must proceed in accordance with the provisions of Rule 9.310(a) (which allows a court to condition a stay on the posting of a good and sufficient bond, other conditions or both). See Pabian v. Pabian, 469 So.2d 189 (Fla. 4th DCA 1985).
6As stated previously, at the hearing on the emergency motion to stay execution of judgment, State Farm led this Court to believe that based on its conversations with the Insurance Commissioner’s office, if State Farm could get this Court to stay execution pending the outcome of State Farm’s dispositive motions, the Insurance Commissioner would not take any measures under the statute. Therefore, any stay of an administrative remedy available to the Insurance Commissioner was stayed based on an agreement between that office and State Farm.
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