# Third District Court of Appeal

State of Florida

Opinion filed January 3, 2018

. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D17-1086

Lower Tribunal No. 09-92831

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### GEICO General Insurance Company

,

Petitioner,

vs.



### Katherine Martinez

, Respondent.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Pedro P.

Echarte, Jr.

, Judge.

Young, Bill, Boles, Palmer & Duke, Michel A. Morgan, B. Richard Young,

Adam A. Duke and Cody S. Pflueger

, for petitioner.

Brodsky Fotiu-Wojtowicz and Alaina Fotiu-Wojtowicz; Michael S. Olin

, for

respondent.

Before SALTER, EMAS and LOGUE, JJ.

EMAS, J.INTRODUCTION

GEICO General Insurance Company, a defendant below, petitions this court

for a writ of certiorari, following the trial court’s orders, which: 1) permitted

plaintiff Katherine Martinez to add GEICO as a party defendant to Martinez’s

negligence claim against GEICO’s insured, arising out of an automobile accident;

2) permitted Martinez to amend her complaint to add a third-party bad-faith claim

against GEICO; and 3) abated, rather than dismissed, Martinez’s unaccrued and

premature third-party bad-faith claim against GEICO.

We grant the petition and quash the orders under review because, under

these circumstances and given our existing precedent, abatement (rather than

dismissal) of a third-party bad-faith claim filed in contravention of the express

requirements of the nonjoinder statute (section 627.4136, Florida Statutes (2016)),

constitutes a departure from the essential requirements of the law, and results in

irreparable harm that cannot be remedied on appeal.

FACTS AND PROCEDURAL BACKGROUND

The facts material to this petition do not appear to be in dispute:

On February 12, 2009, Katherine Martinez sustained injury when the car she

was riding in was struck by a car being driven by Diana Guevara. Guevara was

insured under a policy issued by GEICO. That policy provided bodily injury

coverage in the amount of $10,000 per person and $20,000 per occurrence.

2Martinez filed a one-count negligence complaint against Guevara in 2009.

In October 2016, Martinez filed a motion to amend her complaint to add GEICO as

a party defendant to the action and to add a third-party bad-faith claim against

GEICO. The trial court granted the motion, and Martinez filed an amended

complaint, adding GEICO as a party defendant and pleading a count for third-party

bad-faith against GEICO.

GEICO moved to dismiss the third-party bad-faith count, and at the hearing

on the motion to dismiss, Martinez conceded that the bad-faith claim against

GEICO was unaccrued and premature because, pursuant to the nonjoinder statute,

the bad-faith claim had not yet accrued and would not accrue unless and until

Martinez first obtained a settlement or verdict against Guevara on the underlying

negligence claim.

The trial court denied the motion to dismiss, and instead, abated the action to

await resolution of Martinez’s underlying negligence action against Guevara. This

petition followed.

ANALYSIS

The nonjoinder statute, section 627.4136, Florida Statutes (2016), provides

in pertinent part:

(1) It shall be a condition precedent to the accrual or maintenance of a

cause of action against a liability insurer by a person not an insured

under the terms of the liability insurance contract that such person

shall first obtain a settlement or verdict against a person who is an

3insured under the terms of such policy for a cause of action which is

covered by such policy.

(2)

. . . No person who is not an insured under the terms of a liability

insurance policy shall have any interest in such policy, either as a

third-party beneficiary or otherwise, prior to first obtaining a

settlement or verdict against a person who is an insured under the

terms of such policy for a cause of action which is covered by such

policy.

Martinez concedes that her third-party bad-faith claim against GEICO has

not yet accrued, and concedes that Martinez is not an insured under the terms of

the liability insurance contract between Guevara, the insured and GEICO, the

insurer. Nevertheless, Martinez argues that it was within the trial court’s discretion

to abate, rather than to dismiss, the premature bad-faith claim.

We are unpersuaded by Martinez’s arguments and conclude that this case is

controlled by our decision in Lantana Insurance, Ltd. v. Thornton

, 118 So. 3d 250

(Fla. 3d DCA 2013). We accordingly grant the petition and quash the order

denying the motion to dismiss Martinez’s unaccrued third-party bad-faith claim

against GEICO. 1

1 Because we grant the petition on this basis, we do not reach GEICO’s additional

argument: that the trial court’s order abating (rather than dismissing) the premature

third-party bad-faith action constitutes irreparable harm because it precluded

GEICO from exercising its statutory right of removal of the bad-faith action to

federal court under the diversity jurisdiction provisions of 28 U.S.C. § 1446(b).

This court has not addressed the merits of this issue, and there exists some

disagreement among the districts that have. See GEICO Gen. Ins. Co. v. Harvey

, 109 So. 3d 236 (Fla. 4th DCA 2013) (holding that insurer’s loss of the statutory

right of removal to federal court constituted material injury for which certiorari

review is appropriate); Safeco Ins. Co. of Ill. v. Rader

, 132 So. 3d 941 (Fla. 1st

4In Lantana

, plaintiffs sued homeowner Thornton for negligence. Thornton

was an insured under two homeowner’s policies, one issued by Alfa Insurance and

the other by Lantana Insurance, Ltd. Lantana and Alfa each denied coverage to

Thornton, and Alfa brought a separate action seeking a declaratory judgment on

the question of coverage. When Lantana failed to bring its own declaratory action

or join in Alfa’s declaratory action, plaintiffs filed a third-party complaint against

Lantana in Alfa’s declaratory judgment action.

Lantana moved to dismiss plaintiffs’ third-party complaint, contending that

section 627.4136 barred such third-party claims absent the plaintiffs first securing

a settlement or verdict against Thornton. The trial court denied the motion to

dismiss and instead abated the third-party action.

Lantana filed a petition for writ of certiorari, and this court concluded that

because plaintiffs “have not obtained a settlement with or verdict against Thornton

. . . [t]hey therefore have no beneficial interest in Thornton’s policy with Lantana

and no cause of action against Lantana has accrued.” Id. at 251. We granted the

petition and quashed the order denying the motion to dismiss and abating the

action, holding that “the irreparable harm in such cases arises from the fact that an

insurer is being forced to litigate an action brought by a third-party plaintiff which

DCA 2014) (denying certiorari petition and noting that any harm flowing from loss

of statutory right of removal is not irreparable, as it can be remedied on appeal

from the final judgment).

5would be barred if, in fact, the requirements of section 627.4136 have not been

met.” Id. (quoting S. Owners Ins. Co. v. Mathieu

, 67 So. 3d 1156, 1158 (Fla. 2d

DCA 2011)).

In Starr Indemnity & Liability Co. v. Morris

, 155 So. 3d 429 (Fla. 3d DCA

2015), we cited approvingly to Lantana and reaffirmed that “[t]he law is well

established that a trial court’s incorrect application of Florida’s nonjoinder statute

establishes the irreparable harm necessary for certiorari relief.” Id. at 431. 2

Martinez also asserts that the trial court’s abatement, rather than dismissal,

of an unaccrued and premature third-party bad-faith claim is supported by this

court’s decision in State Farm Florida Insurance Co. v. Seville Place

Condominium Association, Inc.

, 74 So. 3d 105 (Fla. 3d DCA 2011). However,

Seville Place involved a first-party claim, rather than a third-party claim, and

therefore did not implicate section 627.4136 (the nonjoinder statute), which:

2 In Starr

, the plaintiff filed a negligence action against a fishing boat owner and its

captain, and also filed a breach of contract action against the insurer for the boat

owner. The insurer filed a motion to dismiss relying upon the nonjoinder statute,

but the trial court denied dismissal and instead severed the claim against the

insurer. We held that the trial court’s decision to sever, rather than dismiss, was

not a departure from the essential requirements of law, because plaintiff’s breach

of contract claim against the boat owner’s insurance company alleged that plaintiff

was an “omnibus insured” under the insurance policy, and thus fell out of the

proscription of the nonjoinder statute: if plaintiff’s alleged status as an “omnibus

insured” were proven, he would no longer be “a person not an insured under the

terms of the liability insurance contract.” § 627.4136, Fla. Stat. (2016) (emphasis

added).

6- creates a condition precedent before a cause of action against

GEICO has even accrued or can be maintained by Martinez; and

- requires Martinez, as a condition precedent to accrual or

maintenance of her action against GEICO, to first obtain a

settlement or verdict against Guevara, the insured, for a cause of

action that is covered by the policy between Guevara and GEICO.

By its terms, the nonjoinder statute, and its mandatory condition precedent,

is inapplicable to first-party bad-faith claims; it is instead limited to cases, such as

this, which involve a third party (such as Martinez, who is not an insured under the

policy) seeking to join an insurer in the underlying action before Martinez “first

obtain[s] a settlement or verdict against a person [such as Guevara] who is an

insured under the terms of the policy.

. . .” Therefore, Seville Place is inapposite

and Martinez’s reliance upon it is misplaced. 3 Unlike first-party claims, premature

and unaccrued third-party claims must be evaluated in light of the legislative

mandate established by the plain language of the nonjoinder statute. That

legislative mandate precludes Martinez from maintaining any cause of action

against GEICO

— indeed, precludes even the accrual of such a cause of action

—

until Martinez satisfies the compulsory condition precedent of obtaining a

settlement or verdict against Guevara. This mandate would be rendered effectively

meaningless by simply abating, rather than dismissing, Martinez’s concededly

3 In like fashion, Martinez’s reliance on Citizens Property Insurance Corp. v. San

Perdido Association, Inc.

, 104 So. 3d 344 (Fla. 2012) is inapplicable. San Perdido

was a first-party rather than a third-party action, and did not involve application of

the nonjoinder statute.

7unaccrued and premature third-party bad-faith claim against GEICO. In fact,

under subsection (2) of 627.4136, Martinez is declared to have no interest in the

GEICO insurance policy until the condition precedent has been met, and therefore

does not have standing at this time to file or maintain the third-party bad-faith

claim against GEICO.

CONCLUSION

We grant the petition because, under these circumstances, abatement (rather

than dismissal) of a third-party bad-faith claim filed in contravention of the express

requirements of the nonjoinder statute (section 627.4136, Florida Statutes (2016))

constitutes a departure from the essential requirements of law, and results in

irreparable harm that cannot be remedied on appeal. We quash the trial court’s

order denying GEICO’s motion to dismiss the premature third-party bad-faith

claim and remand with instructions to enter an order dismissing that claim without

prejudice.

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