NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

JESSICA Y. CHOI, ) ) Petitioner, ) ) v. ) Case No. 2D16-4642 ) AUTO-OWNERS INSURANCE ) COMPANY and HALEY P. BEUTLER, ) ) Respondents. ) ___________________________________ ) Opinion filed August 16, 2017.

Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; Elizabeth G. Rice, Judge. Kristin A. Norse of Kynes, Markham & Felman, P.A., Tampa; and Joseph Bryant and A. Crosby Crane of Morgan & Morgan, Tampa, for Petitioner. Michael L. Forte of Rumberger, Kirk &Caldwell, P.A., Tampa, for Respondent AutoOwners Insurance Company. No appearance for remaining Respondent.

SILBERMAN, Judge. The underlying action is an automobile negligence action file d by Jessica Y. Choi against alleged tortfeas or Haley P. Beutler and Choi's underinsured motorist- 2 - (UM) insurance carrier, Auto-Owners Insurance Company. Choi se eks certiorari review of an order granting Auto-Owners' motion to sever the causes of action against the two

defendants. We conclude that because all three claims were ine xtricably interwoven, the circuit court departed from the essential requirements of t he law by granting the motion to sever. Accordingly, we grant the petition. The automobile accident occurred in September 2014. Accordin g to the amended complaint, Choi was a passenger in a car that was struc k by Beutler's vehicle. Choi was seriously injured, and Beutler was underinsured. In c ount one, Choi sought recovery from Beutler for the injuries she suffered in the acci dent under a negligence theory. In count two, Choi sought UM benefits from Auto-Owners for damages she suffered in excess of the amount covered by Beutler's insurance policy. In count three, Choi sought punitive damages agains t Beutler based on a claim t hat Beutler was intoxicated to the extent her faculties were impaired at the ti me of the accident. Auto-Owners filed a motion to sever the UM claim against it f rom the claims against Beutler in counts one and three. Auto

‐ Owners contended that Florida's nonjoinder statute, section 627.4136(1), Florida Statutes (2014 ), required separate trials of Choi's claims against the tor tfeasor and the UM carrier. Au to-Owners also argued it

was entitled to severance under Florida Rule of Civil Procedure 1.270(b) to avoid prejudice from the jury's discovering that Choi had insurance c overage and that Beutler was intoxicated at the time of the accident. The trial court g ranted the motion finding "Auto-Owners' arguments to be the more logical and better reaso ned view of the current state of the law and application of the rules of procedure in F lorida."- 3 - "A petitioner seeking a writ of common law certiorari 'must e stablish (1) a departure from the essential requirements of the law, (2) resul ting in material injury for the remainder of the trial (3) that cannot be corrected on post judgment appeal.' " Rogan v. Oliver, 110 So. 3d 980, 982 (Fla. 2d DCA 2013) (quoting Park way Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA 1995)). The second and third elements are jurisdictional, and the failure to establish those elements requires dismissal of the petition without considering the merits. Id. "Certiorari is an appropriate remedy for orders severing or b ifurcating

claims which involve interrelated factual issues because severa nce risks inconsistent outcomes." Minty v. Meister Financialgroup, Inc., 97 So. 3d 92 6, 931 (Fla. 4th DCA 2012) (quoting Kavouras v. Mario City Rest. Corp., 88 So. 3d 21 3, 214 (Fla. 3d DCA 2011)). Choi's claims against Auto-Owners and Beutler involve more than interrelated factual issues. In seeking recovery under the UM benefits avai lable to her, Choi has in

essence the same cause of acti on against her UM insurer, Auto-O wners, that she has against the underinsured tortfeasor, Beutler, for damages for b odily injury. See State Farm Mut. Auto. Ins. Co. v. Kilbreath, 419 So. 2d 632, 634 (Fla . 1982). Thus, an order severing Choi's UM claim against A uto-Owners from her claims ag ainst Beutler may risk inconsistent outcomes and result in material injury that cannot be corrected on postjudgment appeal. On the merits, Choi argues that the severance order departs f rom the essential requirements of the law because it rests on Auto-Owne rs' argument that the nonjoinder statute applies to require severance. However, Auto -Owners has changed its argument from that which it presented below. It no longer asserts that the nonjoinder- 4 - statute requires severance of the UM claim. Rather, it correct ly recognizes that joinder is permitted under the circumstances present here. But it asse rts that the trial court had the discretion to grant the motion to sever under rule 1.270(b) because the prejudice to Auto-Owners outweighs Choi's pre ference to have the claims trie d together. Rule 1.270(b) generally gives courts the discretion to sever claims "in furtherance of convenience or to avoid prejudice." However, it is well-settled that it is a departure from the essential requirements of the law to sever c laims that are inextricably interwoven based on the risk of inconsistent verdi cts. See Rocket Grp., LLC v. Jatib, 174 So. 3d 576, 576 (Fla. 4th DCA 2015); Minty, 9 7 So. 3d at 931; Kavouras, 88 So. 3d at 214; Bethany Evangelical Covenant Church of Miami, Fla., Inc. v. Calandra, 994 So. 2d 478, 479 (Fla. 3d DCA 2008); Maris Dist rib. Co. v. AnheuserBusch, Inc., 710 So. 2d 1022, 1024 (Fla. 1st DCA 1998). Thus, to the extent the trial court relied on rule 1.270(b) to support its decision, it was a departure from the essential requirements of the law. Furthermore, we note that severance would not avoid prejudi ce to AutoOwners arising from the claims against Beutler. First of all, the jury would still learn that Choi had insurance coverage in the severed UM action against he r insurer. Second, the jury would also learn that Beutler was intoxicated at the t ime of the accident in the severed UM action. As we stated previously, Choi's cause of ac tion against AutoOwners for damages arising from Beutler's negligence is at hear t the same as her cause of action against Beutler. While Choi need not establish entitlement to punitive damages in her action against Auto-Owners, the facts regarding Beutler's alleged

intoxication will be relevant to the issue of fault if Auto-Own ers challenges liability, as it- 5 - asserts it will. See Frazee v. Gillespie, 124 So. 6, 9-10 (Fla . 1929) (holding that the intoxication of a driver may be a basis for liability for injur ies sustained as a result of an accident if the accident was caused by a negligent or wrongful act that resulted from being intoxicated). In conclusion, the trial court departed from the essential re quirements of the law by granting the motion to sever three inextricably inte rwoven claims. We therefore grant the petition for certiorari and quash the order granting Auto-Owners'

motion to sever. Petition granted; order quashed.

CASANUEVA and MORRIS, JJ., Concur.