2D11-4509 / State Farm Florida Insurance Company v. Buitrago

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State: Florida

Court: Florida Southern District Court

Docket No: 2D11-4509

Case Date: 06/29/2012

Plaintiff: 2D11-4509 / State Farm Florida Insurance Company

Defendant: Buitrago

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE FARM FLORIDA INSURANCE COMPANY, Petitioner, v. JAIRO BUITRAGO and NOHORA BUITRAGO, Respondents. ) ) ) ) ) ) ) ) ) ) ) )

Case No. 2D11-4509

Opinion filed June 29, 2012. Petition for Writ of Certiorari to the Circuit Court for Pasco County; Linda H. Babb, Judge. Scot E. Samis of Traub, Lieberman, Straus & Shrewsberry, L.L.P., St. Petersburg, for Petitioner. David C. Murray of Danahy & Murray, P.A., Tampa; and Amy S. Farrior and Raymond T. Elligett, Jr., of Buell & Elligett, P.A., Tampa, for Respondents.

CRENSHAW, Judge. State Farm Florida Insurance Company (State Farm) petitions this court for certiorari review of a nonfinal order from the circuit court ruling that section

627.7074, Florida Statutes (2010), is unconstitutional and prohibiting State Farm from conducting any further action on a neutral evaluation under the statute. We hold that the circuit court departed from the essential requirements of law by finding section 627.7074 unconstitutional. Accordingly, we grant State Farm's petition and quash the circuit court's order. Background Homeowners Jairo Buitrago and Nohora Buitrago filed a breach of contract action against their home insurance provider State Farm, alleging that State Farm failed to provide coverage and pay for damages sustained as a result of sinkhole activity on their property.1 In response, State Farm filed an answer and affirmative defenses and moved to stay the proceedings so that it could conduct a neutral evaluation under section 627.7074 as an alternative procedure to resolve the Buitragos' disputed claim. State Farm then requested a neutral evaluation, and pursuant to section 627.7074(4), the Department of Financial Services (the Department) assigned a neutral evaluator to conduct the nonbinding but mandatory evaluation. The Buitragos objected to State Farm's request for a neutral evaluation, alleging that section 627.7074 was unconstitutional because it violated the separation of powers doctrine by usurping the circuit court's authority to adjudicate the disputed coverage issues. The Buitragos also contended that subsection (13) of the statute, which required that the neutral evaluator's written recommendation be admissible in

Prior to the Buitragos' filing of their complaint, State Farm had retained an expert to inspect their property. The expert issued a report which concluded that sinkhole activity did not cause the Buitragos' property damage. In contrast, the Buitragos' expert found that sinkhole activity did cause structural damage. -2-

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their action,2 violated their due process rights by requiring the circuit court to consider a report that did not necessarily comply with the Florida Evidence Code. Therefore, they moved for an emergency protective order to block the neutral evaluation from proceeding. After conducting a hearing on the parties' motions, the circuit court entered an order denying State Farm's motion to stay and granting the Buitragos' motion for a protective order. The circuit court found that section 627.7074 unconstitutionally encroached upon the judiciary's powers and, as such, directed the Department to cease and desist from taking any further action on the neutral evaluation regarding the Buitragos' claim. In particular, the circuit court ruled that the neutral evaluation misappropriated its judicial authority by permitting the Department, as an executive agency, to become the trier of fact and by allowing the Department to adopt rules during the proceeding that may not comply with any formal rules of evidence or procedure. Standard of review This court may review an interlocutory order in a certiorari petition when the petitioner establishes "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal." Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA 1995). We must first examine the second and third prongs to determine our certiorari jurisdiction. See DeLoach v. Aird, 989 So. 2d 652, 654 (Fla. 2d
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The recommendation of the neutral evaluator is not binding on any party, and the parties retain access to court. The neutral evaluator's written recommendation is admissible in any subsequent action or proceeding relating to the claim or to the cause of action giving rise to the claim.

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