NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

 IN THE DISTRICT COURT OF APPEAL 

 OF FLORIDA 

 SECOND DISTRICT 

FLORIDA INSURANCE GUARANTY ) 

ASSOCIATION, ) 

 ) 

Petitioner, ) 

 ) 

v. ) Case No. 2D13-5609 

 ) 

CHAD MURPHY & LORRAINE MURPHY, ) 

 ) 

Respondents. ) 

 ) 

Opinion filed April 10, 2015. 

Petition for Writ of Certiorari to the Circuit 

Court for Pasco County; Stanley R. Mills, 

Judge. 

Helen Klein of Conroy, Simberg, Ganon, 

Krevans, Abel, Lurvey, Morrow & Schefer, 

P.A., Hollywood, for Appellant. 

George A. Vaka and Nancy A. Lauten of 

Vaka Law Group, Tampa, and Neil O'Brien 

of the Law Offices of Joseph Porcelli, New 

Port Richey, for Appellees. 

 

 

SLEET, Judge. 

 The Florida Insurance Guaranty Association (FIGA) seeks certiorari 

review of the trial court's order granting Chad and Lorraine Murphy's motion for partial 
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summary judgment as to liability and damages associated with subsurface repair costs 

in the Murphys' action against FIGA stemming from a sinkhole claim. For the reasons 

discussed below, we grant the petition for writ of certiorari and quash the trial court's 

partial summary judgment. 

 On February 28, 2010, the Murphys filed a claim for sinkhole damage with 

Homewise Preferred Insurance Company for insurance policy benefits under their 

homeowner's policy. In November 2011, Homewise became insolvent and FIGA 

became statutorily obligated to handle the claims of Homewise pursuant to the Florida 

Insurance Guaranty Association Act. See §§ 631.50-.70, Fla. Stat. (2011). In July 

2012, the Murphys sued FIGA for breach of the insurance policy, alleging that FIGA 

failed to acknowledge a covered loss and failed to pay insurance benefits due and 

owing. The Murphys sought money damages for both cosmetic and subsurface repairs 

to their home. 

 Both parties filed motions for summary judgment. The trial court granted 

partial summary judgment in favor of the Murphys on FIGA's liability on the subsurface 

damages and repair costs, but the order specifically noted that the cost of cosmetic 

repairs remained in dispute. As such, "under traditional rules of finality," the order is not 

a final, appealable order. See East Avenue, LLC v. Insignia Bank, 136 So. 3d 659, 661 

(Fla. 2d DCA 2014). The cost of cosmetic repairs is not a separate claim. And the trial 

court should determine both cosmetic and subsurface damages and render a final 

judgment. Nonetheless, the order contains language that authorizes execution. As 

such, review by certiorari is proper. Id. at 664 ("[C]ertiorari is available to review the 

form of an order . . . insofar as it permits execution prior to rendition of an appealable 
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final judgment. This notion . . . is premised on the question of whether an order properly 

may subject a litigant to execution at a time when the trial court litigation is incomplete 

and there is no available appellate remedy."). 

A petitioner seeking a writ of common law certiorari "must 

establish (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). Elements two and 

three constitute a jurisdictional test, and "[i]f the jurisdictional 

prongs of the standard three-part test are not fulfilled, then 

the petition should be dismissed rather than denied." Id. at 

649. 

Rogan v. Oliver, 110 So. 3d 980, 982 (Fla. 2d DCA 2013) (alteration in original). 

 Furthermore, 

before certiorari can be used to review [nonfinal] orders, the 

appellate court must focus on the threshold jurisdictional 

question: whether there is a material injury that cannot be 

corrected on appeal, otherwise termed as irreparable harm. 

Assuming this requirement is met, the court must then 

determine whether the decision below departed from the 

essential requirements of law—something that is more than 

just a legal error. 

Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 104 So. 3d 344, 351 (Fla. 2012) (citation 

omitted), quoted in East Avenue, 136 So. 3d at 664. 

 Here, the jurisdictional prongs are satisfied because while the Murphys 

may seek execution of the judgment, FIGA may not obtain review until the trial court 

renders a final order. See East Avenue, 136 So. 3d at 665 (concluding "that the order 

at issue here satisfies the two jurisdictional prongs of the certiorari test" because it 

"subject[ed] East Avenue to execution at a time when it ha[d] no appellate remedy and 

therefore [could not] protect its assets by filing a supersedeas bond"). Furthermore, 
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allowing execution on the judgment prior to entry of a final, appealable order is a 

departure from the essential requirements of law. Id. ("The remaining question is 

whether the order at issue departed from the essential requirements of law insofar as it 

permitted execution prior to rendition of a truly appealable final judgment in the case. 

We conclude that it did."). 

 Accordingly, we grant the petition for writ of certiorari and quash the trial 

court's order of partial summary judgment. 

 Petition granted; order quashed. 

WALLACE and LaROSE, JJ., Concur.