DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

THE FIRST LIBERTY INSURANCE CORPORATION,

a foreign corporation,

Petitioner,

v.

JOHANNA O’NEILL and WILLIE J. ANDERSON,

Respondents.

No. 4D14-2895

[January 13, 2016]

Petition for writ of certiorari to the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Donald W. Hafele, Judge; L.T. Case 

No. 502013CA004444MB.

Mark S. Shapiro and Antonio D. Morin of Akerman LLP, Miami, for 

petitioner.

Brett C. Powell of The Powell Law Firm, P.A., Palmetto Bay, for 

respondent Johanna O’Neill.

GERBER, J.

The insurer appeals from: (1) the circuit court’s partial final judgment 

for the insured on her uninsured motorist claim after the insurer tendered 

its policy limits; and (2) the court’s simultaneous order granting the 

insured’s motion to amend the complaint to add a first-party bad faith 

claim. We treat the appeal as a petition for a writ of certiorari and deny 

the petition.

We deny the petition because the circuit court’s decisions – at the time 

of its decisions – did not constitute a departure from the essential 

requirements of the law. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 

So. 3d 1086, 1092 (Fla. 2010) (“The departure from the essential 

requirements of the law necessary for granting a writ of certiorari is 

something more than a simple legal error.”).

At the time of the circuit court’s decisions, we had not addressed the 

issue of whether an insured, after obtaining a favorable result on its 
2

benefits claim, may amend the complaint to add a first-party bad faith 

claim instead of filing a new action on the bad faith claim.

Instead, the circuit court was faced with a split of authority from our 

sister courts on that issue. Compare Safeco Ins. Co. of Ill. v. Rader, 132 

So. 3d 941, 947-48 (Fla. 1st DCA 2014) (denying insurer’s petition for writ 

of certiorari as to the circuit court’s order denying the insurer’s motion to 

enter a final judgment in accordance with the insurer’s confession of 

judgment on the insured’s underinsured motorist claim, and also granting 

the insured’s motion to add a bad faith claim), with Safeco Ins. Co. of Ill. v. 

Fridman, 117 So. 3d 16, 17-18 (Fla. 5th DCA 2013) (trial court erred in 

denying insurer’s motion to enter a final judgment in accordance with the 

insurer’s confession of judgment, and also reserving jurisdiction on the 

insured’s motion to amend his complaint to add a bad faith claim; instead, 

the trial court should have entered the confessed judgment in the 

insured’s favor, and the insured should have pursued a subsequent bad 

faith action against the insurer), rev. granted, 145 So. 2d 823 (Fla. 2014).

Given the lack of binding authority from this court on the underlying 

issue, and given the split of authority between our sister courts on the 

underlying issue, we cannot say that the circuit court’s apparent decision 

to follow the First District’s authority was a departure from the essential 

requirements of the law at the time of its decision. Thus, because of that

procedural posture, we are compelled to deny the petition for writ of 

certiorari and not decide the underlying issue until a final appealable 

judgment is entered.

Petition denied.

GROSS and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.