Third District Court of Appeal

State of Florida

Opinion filed April 18, 2018.

Not final until disposition of timely filed motion for rehearing.

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Nos. 3D16-854; 3D16-1831; 3D16-1456; 3D16-1457; 3D16-1459

Lower Tribunal Nos. 14-32096; 16-3469; 15-30091; 16-6056; 15-15114

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Citizens Property Insurance Corporation,

Appellant/Cross-Appellee,

vs.

Rosa Calonge, 

Appellee/Cross-Appellant,

and

Wilson Imbert and Judy Imbert, Lazaro Gomez Cruz and Judith 

Carreras Lopez, Francisco Granados and Daisy Granados, and 

Anthony Calvi, 

Appellees.

Appeals from non-final orders from the Circuit Court for Miami-Dade 

County, Antonio Arzola, Migna Sanchez-Llorens, and Monica Gordo, Judges.

Link & Rockenbach, P.A., and Kara Berard Rockenbach (West Palm Beach), 

for appellant/cross-appellee.

Barnard Law Offices, L.P., and Andrew C. Barnard, for appellees/crossappellant.

Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ. 
2

SCALES, J.

In these five consolidated appeals, we review virtually identical non-final 

orders that deny, without elaboration, Appellant Citizens Property Insurance 

Corporation’s (“Citizens”) motions to dismiss Appellees’1 claims. While Citizens’s 

dismissal motions assert its sovereign immunity from Appellees’ claims, we do not 

have jurisdiction to review the trial courts’ unelaborated non-final orders denying 

Citizens’s dismissal motions. Therefore, we dismiss each of Citizens’s appeals.

I. Relevant Background

Citizens sought to dismiss various counts in Appellees’ complaints. Citizens 

argued that these counts, irrespective of how they were couched, constitute 

disguised, first-party bad faith claims for which Citizens enjoys sovereign immunity 

under section 627.351(6)(s) of the Florida Statutes and the case of Citizens Property 

Insurance Corp. v. Perdido Sun Condominium Association, 164 So. 3d 663 (Fla. 

2015). The trial courts adjudicated each such dismissal motion by entering an 

 1 Each of the five appellees, whom we refer to collectively as “Appellees,” filed a 

claim with Citizens seeking insurance proceeds for residential property damage.

After disputes arose regarding Appellees’ insurance claims, each appellee filed a 

complaint in circuit court. While each complaint contains somewhat different 

allegations and counts, because of our ruling, the variations in Appellees’ allegations 

are not relevant to our holding. All five complaints yielded trial court orders that 

involve the same legal question for our consideration, and therefore, this opinion 

affects each appellee’s case in the same way.
3

unelaborated order that simply denied Citizens’s motion. Citizens appealed each of 

these non-final orders.

In its initial briefs to this Court, Citizens argues that the trial court erred by 

denying its dismissal motions; and, because Citizens’s dismissal motions were 

premised upon sovereign immunity claims, the non-final dismissal orders are subject 

to interlocutory review. See Fla. R. App. P. 9.130(a)(3)(C)(xi). In their answer briefs 

to this Court, Appellees each assert, among other things, that, because the appealed 

interlocutory orders are unelaborated, the orders lack the requisite determination to 

allow appellate review under rule 9.130(a)(3)(C)(xi). We consolidated these appeals 

because the threshold jurisdictional issue for each appeal is the same: whether we 

have jurisdiction to review an unelaborated non-final order denying Citizens’s 

motion to dismiss when the motion asserts entitlement to sovereign immunity.

II. Analysis

Our appellate jurisdiction to review non-final orders is limited to only those 

orders specifically scheduled in rule 9.130(a)(3). See Keck v. Eminisor, 104 So. 3d 

359, 363-64 (Fla. 2012). Citizens relies on rule 9.130(a)(3)(C)(xi) to vest this Court 

with jurisdiction to hear the otherwise non-reviewable interlocutory orders. This rule 

reads as follows: “Appeals to the district courts of appeal of non-final orders are 

limited to those that . . . determine . . . that, as a matter of law, a party is not entitled 

to sovereign immunity.”
4

In each order on appeal, the trial court states merely that Citizens’s motion to 

dismiss was denied. In none of these orders did the trial court state as a basis for its

denial that Citizens was not entitled to the sovereign immunity shield from suit.

While the dissent assiduously argues to the contrary, we are constrained by this 

Court’s jurisprudence and the text of the relevant rule to limit our jurisdictional 

inquiry to the four corners of the appealed order. Put another way, in making our 

jurisdictional determination, we look only to the face of the trial court’s order and 

do not penetrate the record with a searchlight to divine whether the trial court’s 

undisclosed rationale warrants appellate review. Miami-Dade Cty. v. Pozos, 42 Fla. 

L. Weekly D418 (Fla. 3d DCA Feb. 15, 2017); Citizens Prop. Ins. Corp. v. Sosa, 

215 So. 3d 90 (Fla. 3d DCA 2016).

A. This Court’s Jurisprudence

In Pozos, the plaintiff claimed that the County was liable for personal injuries 

suffered after plaintiff was shot at a County park. The County filed a summary 

judgment motion asserting sovereign immunity, and the trial court entered an 

unelaborated order denying the County’s motion. The County appealed this nonfinal order, arguing that this Court had jurisdiction to review the trial court’s 

unelaborated order because the order impliedly determined, as a matter of law, that 

the County was not sovereignly immune from Pozos’s claim. This Court dismissed 

the County’s appeal for lack of jurisdiction because the trial court’s order did not 
5

provide an explicit determination on the availability of the immunity defense, and 

because Florida’s district courts are “without authority to make the determination on 

our own accord.” Pozos, 42 Fla. L. Weekly D418.

In Sosa, which bears some similarity to the instant case, Citizens appealed a 

non-final order in which the trial court denied Citizens’ motion to strike certain bad 

faith allegations and to dismiss and/or strike certain counts of the complaint. On 

appeal, Citizens “characterize[ed] the trial court’s order as one determining that it is 

not entitled to sovereign immunity as a matter of law . . . .” Sosa, 215 So. 3d at 91. 

This Court dismissed the appeal for lack of jurisdiction, again because the trial 

court’s order did not address sovereign immunity specifically. Id.

Both Pozos and Sosa follow Florida Supreme Court jurisprudence dictating

that Florida’s district courts do not have jurisdiction to review a non-final order 

addressing immunity unless the order specifically states that the immunity defense 

is not available. Hastings v. Demming, 694 So. 2d 718, 720 (Fla. 1997).

While Hastings and its progeny2 involve workers’ compensation immunity rather 

than sovereign immunity, the jurisdictional rules authorizing the interlocutory 

appeals of orders relating to workers compensation immunity and sovereign 

immunity are identical in their wording, and therefore are analogous.

3 Because the 

 2 See Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812 (Fla. 2004); Fla. 

Dept. of Corrections v. Culver, 716 So. 2d 768 (Fla. 1998).
6

drafters of these two rules chose to employ virtually identical language to define the 

contours of our interlocutory jurisdiction in the immunity context, we have no 

difficulty applying case law from workers’ compensation immunity jurisprudence 

to inform our analysis of sovereign immunity jurisdiction. See State v. Hearns, 961 

So. 2d 211, 217 (Fla. 2007) (“We have held that where the Legislature uses the exact 

same words or phrases in two different statutes, we may assume it intended the same 

meaning to apply.”) 

We do note that Hastings, Reeves and Culver arose from summary judgment 

determinations, yet the Florida Supreme Court has not distinguished between an 

order on a motion for summary judgment and an order on a motion to dismiss.

Indeed, Reeves cites approvingly to Martin Electronics, Inc., v. Glombowski, 705 

So. 2d 26, 30 (Fla. 1st DCA 1997), in which the First District held that an

unelaborated order deriving from a motion to dismiss and making no specific 

immunity determination, was not an appealable order. Reeves, 889 So. 2d at 821.

B. Text of the Relevant Rule

Our reading of rule 9.130(a)(3)(C)(xi) – preventing interlocutory review of an 

unelaborated order – is consistent with the text of the rule, as well as the requirement 

 3 Rule 9.130, as it relates to workers’ compensation immunity, reads as follows: 

“Appeals to the district courts of appeal of non-final orders are limited to those that 

. . . determine . . . that, as a matter of law, a party is not entitled to workers’ 

compensation immunity.” Fla. R. App. P. 9.130(a)(3)(C)(v).
7

that we are to construe narrowly the categories of non-final orders subject to 

interlocutory appeal. Walker v. Fla. Gas Transmission Co., 134 So. 3d 571, 572 (Fla. 

1st DCA 2014). The presence of the word “determine” in the rule is significant. The 

“non-final order[]” must “determine” that “a party is not entitled to sovereign 

immunity.” Thus, the plain text of the rule requires that, for interlocutory review to 

be available, the order itself must actually adjudicate the sovereign immunity issue 

against the allegedly immune party. Nothing in the rule suggests that we may adduce 

or surmise such a determination by reviewing documents in the record apart from

the trial court’s written order. Such a search for jurisdiction within the record would

lead to imprecise and even presumptuous conclusions. To allow a district court to 

make its jurisdictional determination by engaging in its own examination of the 

underlying record essentially would allow the district court to make the sovereign 

immunity determination in the first instance. Surely, such a search for jurisdiction 

would undermine the purpose of rule 9.130(a)(3) itself, which is to expressly 

circumscribe the categories of non-final orders subject to interlocutory 

review. Pozos, 42 Fla. Weekly D418.

III. Conclusion

The trial courts’ non-final orders below merely said: “Denied.” These orders 

did not determine, as a matter of law, that Citizens is not entitled to sovereign 
8

immunity. Therefore, we lack jurisdiction to review the challenged orders under rule

9.130(a)(3)(C)(xi), and dismiss the consolidated appeals.4

Dismissed.

SUAREZ, J., concurs.

 4 We are not unsympathetic to Citizens’s argument. After all, immunity from suit is 

significantly different from having a mere defense to an action; an immune party 

should not be forced to stand trial or otherwise face the burdens of litigation. See

Tucker v. Resha, 648 So. 2d 1187, 1189-90 (Fla. 1994). The idea that a defendant 

cannot be “re-immunized” after an erroneous denial of immunity underpins the 

appellate rules allowing for interlocutory review of an order determining that a party 

is not entitled to immunity. Id. at 1189. It is for this reason, when a party asserts 

entitlement to immunity, we strongly encourage trial courts to elaborate on their nonfinal orders denying such immunity to allow the alleged immune party interlocutory 

review of such orders.
9

Citizens Property Insurance Corporation v. Rosa Calonge, etc.

Case Nos. 3D16-854, 3D16-1831, 3D16-1456, 3D16-1457 & 3D16-1459

ROTHENBERG, C.J. (dissenting).

In these five consolidated appeals,5 we are presented with two questions: (1) 

whether we have appellate jurisdiction to review non-final orders that deny, without 

elaboration, motions to dismiss that only raise the issue of sovereign immunity from 

suit; and (2) if we reach the merits, whether the trial court erred by denying Citizens 

Property Insurance Corporation’s (“Citizens”) motion to dismiss the breach of 

contract and declaratory judgment claims pled in the five separate complaints filed 

by the Appellees, claims from which Citizens argues it is sovereignly immune 

because they are statutory bad-faith claims. As will be explained more fully below, 

I would answer both questions in the affirmative, reverse the orders on appeal, and 

remand with instructions to the trial courts to enter orders granting Citizens’ motions 

to dismiss without prejudice to allow the Appellees to file amended complaints. 

BACKGROUND

After the Appellees allegedly sustained accidental property damage to their 

real properties, they sued their insurer, Citizens, alleging various causes of action. 

Although the procedural history and the complaints in each of these five cases are 

 5 I refer to the Appellees in these five appeals collectively as “the Appellees” because 

(1) they are represented by the same legal counsel, (2) the allegations in the relevant 

counts in their complaints implicate the same legal questions, and (3) the end result 

of this opinion affects them all in the same way.
10

somewhat different, the common issue in these appeals is whether the trial court 

erred by denying Citizens’ motion to dismiss the breach of contract and declaratory 

judgment counts brought in each of the Appellees’ complaints. 

In each case, Citizens moved to dismiss the breach of contract and declaratory 

judgment claims, arguing that these claims were actually disguised claims for 

statutory bad-faith under section 624.155(1), Florida Statutes (2014), for which 

Citizens is entitled to sovereign immunity as a matter of law. See Citizens Prop. Ins. 

Corp. v. Perdido Sun Condo. Ass’n, 164 So. 3d 663, 667 (Fla. 2015) (holding that 

Citizens has sovereign immunity from suit regarding statutory bad-faith claims). 

Although the trial court judges in these five cases entered orders denying Citizens’ 

motions to dismiss the breach of contract and declaratory judgment claims, they 

failed to elaborate as to their reasoning either at the hearings on Citizens’ motions 

or in the orders they issued.6 Citizens timely appeals these non-final orders denying 

its motions to dismiss pursuant to Florida Rule of Appellate Procedure 

9.130(a)(3)(C)(xi), which provides that a party may appeal to the district court nonfinal orders that “determine . . . that, as a matter of law, a party is not entitled to 

sovereign immunity.” 

I. Jurisdiction

 6 While in some of the cases, Citizens also moved to dismiss other counts in the 

Appellees complaints for different reasons, the trial court’s rulings on those counts 

are not before us.
11

The majority dismisses Citizens’ appeals for lack of jurisdiction based on its 

conclusion that the orders are not appealable under rule 9.130(a)(3(C)(xi) because 

the trial court’s orders do not expressly state that as a matter of law, Citizens is not 

entitled to sovereign immunity. I respectfully submit that the majority’s 

interpretation of rule 9.130(a)(3)(C)(xi) is unsupported by the plain language of the 

rule, the purpose of the rule, the relevant case law, and common sense. I would 

therefore deny each of the Appellees’ motions to dismiss the appeals and decide 

these appeals on the merits.

Our standard of review for the interpretation of procedural rules is de 

novo. Strax Rejuvenation & Aesthetics Inst., Inc. v. Shield, 49 So. 3d 741, 742 (Fla. 

2010). “Procedural rules should be given a construction calculated to further justice, 

not to frustrate it.” Id. at 743 (quoting Singletary v. State, 322 So. 2d 551, 555 (Fla. 

1975)). “Our courts have long recognized that the rules of construction applicable to 

statutes also apply to the construction of rules.” Brown v. State, 715 So. 2d 241, 243 

(Fla. 1998).

A. The majority’s interpretation is unsupported by the text of the rule

As the majority correctly states, we are constrained by the text of the rule. 

Rule 9.130(a)(3)(C)(xi) provides as follows: “Appeals to the district courts of appeal 

of non-final orders are limited to those that . . . determine . . . that, as a matter of law, 

a party is not entitled to sovereign immunity.” This text does not contain any words 
12

limiting the appeal of non-final orders to those orders that expressly determine that 

a party is not entitled to sovereign immunity. The word “determination,” from which 

the word “determine” derives, simply means “[t]he act of deciding something 

officially.” Determination, Black’s Law Dictionary (10th ed. 2014); see also Legally 

Determined, Black’s Law Dictionary (10th ed. 2014) (defining “legally determined” 

as “decided by legal process”); Charter Sch. USA, Inc. v. John Doe No. 93, 152 So. 

3d 657, 661 (Fla. 3d DCA 2014) (concluding, in the context of analyzing Florida 

Rule of Civil Procedure 1.550, that “‘determined’ means the point in time when the 

trial judge, in this case signed an order ruling on the school’s post-trial motions”). 

Indeed, if the word “determined” somehow signified an express statement, then the 

phrase “expressly determined” would be redundant. It is therefore clear from the text 

of rule 9.130(a)(3)(C)(xi) that a party’s ability to appeal non-final orders under the 

rule is not as limited as the majority has found. In fact, it is only possible to reach 

the majority’s conclusion if we add language to the rule.

B. The majority’s interpretation is in conflict with the purpose of the rule

The purpose behind amending rule 9.130 to include rule 9.130(a)(3)(C)(xi) 

was to give meaningful effect to sovereign immunity from suit. This purpose would 

be arbitrarily frustrated if only those orders expressly denying entitlement to 

sovereign immunity were appealable. The Florida Supreme Court has specifically 

noted the importance of providing interlocutory review to parties who are entitled to 
13

sovereign immunity from suit but were denied that right at the trial court 

level. See Keck v. Eminisor, 104 So. 3d 359, 360 (Fla. 2012).

In Keck, when addressing whether interlocutory review should be available 

to defendants to appeal non-final orders denying motions for summary judgment 

based on a claim of sovereign immunity under section 768.28(9)(a), Florida Statutes 

(2005), the Florida Supreme Court stated the following: 

[I]f a defendant who is entitled to the immunity granted in section 

768.28(9)(a) is erroneously named as a party defendant and is required 

to stand trial, that individual has effectively lost the right bestowed by 

statute to be protected from even being named as a defendant. If orders 

denying summary judgment based on claims of individual 

immunity from being named as a defendant under section 

768.28(9)(a) are not subject to interlocutory review, that statutory 

protection becomes essentially meaningless for the individual 

defendant.

Id. at 366 (emphasis added). Thus, the Florida Supreme Court recommended a 

change to the rules of appellate procedure to allow for appeals “where an individual 

defendant who claims immunity under 768.28(9)(a) is denied that immunity and the 

issue turns on a matter of law.” Id. at 369. Specifically, the Court requested that the 

Florida Bar Appellate Court Rules Committee consider “whether the categories of 

non-final orders in rule 9.130(a)(3) should be expanded to include the denial of any 

claim of immunity where the question presented is solely a question of law.” Id.

at 370 (emphasis added). Upon recommendations from the Florida Bar Appellate 

Court Rules Committee, the Florida Supreme Court adopted rule 9.130(a)(3)(C)(xi), 
14

which now permits appeals from non-final orders that determine that, as a matter of 

law, a party is not entitled to sovereign immunity.

In order for a party’s entitlement to sovereign immunity from suit to 

constitute an effective protection, the party must have a meaningful ability to assert 

its entitlement to sovereign immunity at the very beginning of litigation. To hold 

that the non-final order must expressly state that a party is not entitled to sovereign 

immunity, where it is otherwise clear that the trial court made such a determination, 

would arbitrarily restrict a party’s ability to appeal an adverse ruling regarding its 

entitlement to sovereign immunity from suit in circumstances where the trial court 

merely issues an unelaborated order denying a motion to dismiss that only raises the 

party’s claim to sovereign immunity from suit. To withhold an appellate remedy to 

a party who is sovereignly immune from suit as a matter of law until the case has 

been fully litigated, simply because the trial court has failed or refused to issue an 

elaborated order, is contrary to the very purpose and intent of the rule change. 

C. The case law does not support the majority’s position

The majority cites to two opinions issued by this Court in support of its 

position that this Court lacks jurisdiction over the trial court’s unelaborated orders 

denying Citizens’ motions to dismiss: Citizens Property Insurance Corp. v. Sosa, 

215 So. 3d 90 (Fla. 3d DCA 2016), and Miami-Dade County v. Pozos, 42 Fla. L. 

Weekly D418 (Fla. 3d DCA Feb. 5, 2017). Both cases are easily 
15

distinguishable. Pozos is not yet final on appeal, and the trial court specifically 

stated that it was not ruling on sovereign immunity in Sosa. And, as will be 

discussed below, the Florida Supreme Court has reviewed unelaborated orders 

denying motions to dismiss where it is clear that the trial court determined, as a 

matter of law, that a party was not entitled to immunity.

(1) Sosa

In Sosa, Citizens moved to strike the bad-faith allegations and to dismiss 

and/or strike counts II and III based on its sovereign immunity from bad-faith 

claims. Sosa, 215 So. 3d at 91. However, the record in Sosa reflected that the trial 

court did not even reach the issue of sovereign immunity when it denied Citizens’ 

motion to dismiss. Id. Instead, the trial court abated or stayed any action on those 

counts until the issues of coverage and liability were resolved. Id. Because the trial 

court did not rule on Citizens’ sovereign immunity claim, the majority’s reliance on 

that case is misplaced.

(2) Pozos

Pozos, although not yet final on appeal, is also distinguishable. First, MiamiDade County raised the issue of its sovereign immunity in a motion for summary 

judgment rather than in a motion to dismiss. Whereas a motion to dismiss is 

designed to test the legal sufficiency of the complaint assuming that the alleged facts 

are true, Minor v. Brunetti, 43 So. 3d 178, 179 (Fla. 3d DCA 2010), a motion for 
16

summary judgment usually rests on whether the evidence developed in the record 

supports only one set of facts that entitles a party to judgment as a matter of law. 

In Pozos, this Court found that it lacked jurisdiction because the trial court denied 

the County’s motion for summary judgment without specifying whether it 

determined, as a matter of law, that the County was not entitled to sovereign 

immunity or whether it found that there were “disputed issues of material fact or 

ongoing discovery that would render summary judgment premature.” Pozos at *5.

Second, two different issues were argued in Pozos: (1) whether the County 

was entitled to summary judgment based on its claim of sovereign immunity; and/or 

(2) whether there were material issues of disputed fact as to whether the County 

owed the plaintiff a duty of care. Because the trial court issued an unelaborated 

order, the majority found that it was impossible to determine the trial court’s 

reasoning for denying the County’s motion for summary judgment.

D. The Florida Supreme Court

(1) Beach Community Bank

The majority’s interpretation of rule 9.130(a)(C)(xi) is also in conflict with 

the Florida Supreme Court’s interpretation of the rule. In Beach Community Bank 

v. City of Freeport, Florida, 150 So. 3d 1111 (Fla. 2014), the Florida Supreme Court 

accepted jurisdiction to review the First District Court of Appeal’s decision in City 

of Freeport v. Beach Community Bank, 108 So. 3d 684 (Fla. 1st DCA 2013). The 
17

City of Freeport moved to dismiss the complaint based on its immunity from suit. 

The trial court issued an order denying the City’s motion to dismiss. A review of 

the record before the First District and the Florida Supreme Court reflects that the 

order in question merely stated that the City’s “Motion to Dismiss with Prejudice 

is denied and Defendant shall file a responsive pleading within 20 days of the 

date of this Order.” (emphasis added).

The City filed a petition for writ of certiorari to review the non-final order on 

the basis that the City was entitled to sovereign immunity as a matter of law and thus 

the trial court departed from the essential requirements of law by denying its motion 

to dismiss. City of Freeport, 108 So. 3d at 686. The First District agreed with the 

City, granted the petition and quashed the order under review. Id. at 691. On review 

to the Florida Supreme Court, the original question was whether the District Court 

could exercise certiorari jurisdiction to review the trial court’s non-final 

order. Beach Cmty. Bank, 150 So. 3d 1112. However, because the Florida Bar 

Appellate Court Rules Committee’s proposed amendment to rule 9.130 was pending 

before the Florida Supreme Court and the Court concluded that the “case falls 

squarely within the new rule amendment,” the Court determined “that the City 

should be entitled to the benefit of the new rule.” Id. at 1113. Specifically, the Court 

held that the proposed amendment “answers the question that the City asks this Court 

to confront in this case. This amendment permits district courts to review 
18

nonfinal orders of decisions determining entitlement to sovereign immunity 

where the case involves a pure legal question.” Id. (emphasis added).

Importantly, although the trial court’s order simply denied the City’s motion 

to dismiss and ordered the City to file responsive pleadings within twenty days, and 

the order did not include the language that the denial of the motion to dismiss on the 

basis of sovereign immunity was a denial as a matter of law, the First District 

reviewed the order and determined that the City was entitled to sovereign immunity 

and the Florida Supreme Court reviewed the same order and agreed. Beach Cmty. 

Bank, 150 So. 3d at 1114. Thus, the Florida Supreme Court quashed the First 

District’s decision to the extent that it resolved the issue based on certiorari review, 

but approved the decision based on the amendment to rule 9.130, Id. at 1114-15, and 

issued its opinion on the very same day that it approved the amendment to rule 9.130.

(2) Keck

The Florida Supreme Court’s opinion in Keck also suggests that the majority’s 

interpretation of rule 9.130(a)(3)(C)(xi) is incorrect. In Keck, the trial court issued 

an order denying Keck’s motion for summary judgment based on his claim of 

sovereign immunity. Keck, 104 So. 3d at 362. Keck sought review, but because 

rule 9.130 had not yet been amended to permit interlocutory appeals of trial court 

orders denying summary judgment, Keck petitioned the First District for a writ of 

certiorari. Id. Because the First District concluded that certiorari review was not 
19

proper, it denied the petition without addressing the merits of the petition. Id. The 

First District, however, certified a question to the Florida Supreme Court; the Florida 

Supreme Court accepted jurisdiction; and the Court rephrased the certified question 

as follows:

Should review of the denial of a motion for summary judgment based 

on a claim of individual immunity under section 768.28(9)(a), Florida 

Statutes, await the entry of a final judgment in the trial court to the 

extent that the order turns on an issue of law?

Id. at 363.

In answering the certified question, the Florida Supreme Court noted that 

in Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994), the Court had “examined whether 

to expand the category of non-final appealable orders to include orders denying 

summary judgment based on a qualified immunity claim,” and because of the nature 

of the rights involved, interlocutory review must be available to an individual whose 

claim of qualified immunity was denied by the trial court. Keck, 648 So. 2d at 364.

The Court specifically noted:

Because qualified immunity of public officials involves immunity from 

suit rather than a mere defense to liability, we reasoned that immunity 

from suit is effectively lost if a case is erroneously permitted to go to 

trial because a trial court’s order denying qualified immunity cannot be 

reviewed on appeal from a final judgment as the public official cannot 

be re-immunized if erroneously required to stand trial or face the other 

burdens of litigation.

Id. at 364 (emphasis in original) (internal quotations omitted) (citing Tucker, 648 

So. 2d at 1189). The Florida Supreme Court went on to recognize that in Tucker,
20

[w]e stressed that if orders denying summary judgment based upon 

claims of qualified immunity are not subject to interlocutory review, 

the qualified immunity of public officials is illusory and the very policy 

that animates the decision to afford such immunity is thwarted. We 

held that an order denying summary judgment based upon a claim of 

qualified immunity should be subject to interlocutory review to the 

extent that the order turns on an issue of law.

Keck, 104 So. 3d at 365 (internal citations and quotations omitted).

The Florida Supreme Court in Keck, therefore, concluded that:

[I]f a defendant who is entitled to the immunity granted in section 

768.28(9)(a) is erroneously named as a party defendant and is required 

to stand trial, that individual has effectively lost the right bestowed by 

statute to be protected from even being named as a defendant. If orders 

denying summary judgment based on claims of individual 

immunity from being named as a defendant under section 

768.28(9)(a) are not subject to interlocutory review, that statutory 

protection becomes essentially meaningless for the individual 

defendant.

For the above reasons, we answer the rephrased question in the 

negative and hold that an order denying summary judgment based 

on a claim of individual immunity under section 768.28(9)(a) is 

subject to interlocutory review where the issue turns on a question 

of law.

Keck, 104 So. 3d at 366 (emphasis added).

Based on the Florida Supreme Court’s ruling in Keck, Justice Pariente, in her 

concurring opinion, recommended that the Florida Bar Appellate Court Rules 

Committee submit a proposed amendment, as previously discussed in this opinion, 

and that when it addressed the rule amendment, that it do so more broadly to address 

interlocutory appeals of immunity claims in a comprehensive manner. Id. at 369.
21

While I recognize that the Florida Supreme Court was addressing individual 

immunity under section 768.28(9)(a), rather than sovereign immunity granted under 

section 627.351(6)(s), in Keck, Justice Pariente asked the Florida Bar Appellate 

Court Rules Committee to address interlocutory appeals of immunity claims in a 

comprehensive manner, and rule 9.130(a)(3)(C)(xi) was later amended in direct 

response to Justice Pariente’s request. It also makes no sense to treat orders that 

deny an individual’s immunity from suit any differently than orders denying an 

entity’s immunity from suit. In both instances, the defendant who is entitled to 

immunity from suit as a matter of law should not be forced to litigate the plaintiff’s 

claims simply because the trial court issues an unelaborated order.

E. The majority’s reliance on cases involving workers’ compensation 

immunity is misplaced

In support of its argument that the trial court must expressly state in its nonfinal order that it is determining, as a matter of law, that a party is not entitled to 

sovereign immunity, the majority relies on cases addressing workers’ compensation 

immunity under rule 9.130(a)(3)(C)(v), which states that a party may appeal a nonfinal order determining “that, as a matter of law, a party is not entitled to workers’ 

compensation immunity.” The Florida Supreme Court, in construing rule 

9.130(a)(3)(C)(v), has stated that “[n]onfinal orders denying summary judgment on 

a claim of workers’ compensation immunity are not appealable unless the trial court 

order specifically states that, as a matter of law, such a defense is not available to a 
22

party.” Hastings v. Demming, 694 So. 2d 718, 720 (Fla. 1997) (emphasis 

added); Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 821 (Fla. 2004) 

(stating that “a district court does not have jurisdiction to review a nonfinal order 

denying summary final judgment unless the trial court’s order explicitly states that 

the defendant will not be entitled to present a workers’ compensation immunity 

defense at trial”) (emphasis added). 

This case law is highly distinguishable, as is rule 9.130(a)(3)(C)(v). Unlike 

Citizens’ claim for entitlement to sovereign immunity from suit in the instant cases, 

workers’ compensation immunity is an affirmative defense, involving factual 

issues that typically preclude a motion to dismiss. Gen. Cinema Beverages of Miami, 

Inc. v. Mortimer, 689 So. 2d 276, 277 (Fla. 3d DCA 1995) (“Establishment of 

workers’ compensation immunity usually requires the employer to bring forth facts 

from outside the four corners of the complaint, which necessarily requires a motion 

for summary judgment.”); Eiler v. Camp Dresser & McKee, Inc., 542 So. 2d 441, 

442 (Fla. 5th DCA 1989) (stating that “the exclusivity provision set forth in section 

440.11 of the Workers’ Compensation Act is an affirmative defense which cannot 

be raised by a motion to dismiss unless the allegations of a prior pleading in the case 

demonstrate the existence of such a defense”); see also Ruiz v. Aerorep Grp. Corp., 

941 So. 2d 505, 508 (Fla. 3d DCA 2006) (“Although workers’ compensation 

immunity usually cannot be raised in a motion to dismiss, an exception exists 
23

allowing the defense to be raised in a motion to dismiss where the defense appears 

on the face of the complaint.”). 

Thus, in the context of an order denying, without explanation, a motion that 

is premised on the affirmative defense of workers’ compensation immunity, it may 

be difficult to determine whether the trial court denied a party’s claim for workers’ 

compensation immunity due to factual issues that must be resolved prior to 

adjudicating the legal issue of immunity, or whether the trial court determined, as a 

matter of law, that a party is not entitled to the workers’ compensation immunity 

defense. By contrast, in the instant cases, whether Citizens is entitled to sovereign 

immunity from suit with regard to statutory bad-faith claims involves no factual 

issues, and the legal question can readily be resolved by a motion to dismiss as soon 

as the complaint is filed. That is because Citizens is immune from having to defend 

itself against all first-party bad-faith claims regardless of the facts alleged.

Additionally, even in the workers’ compensation immunity context, at least 

one of our sister courts has raised a significant concern about parties and trial courts 

intentionally obfuscating the real justifications for orders denying a party’s claim for 

workers’ compensation immunity. In Martin Electronics, Inc. v. Glombowski, 705 

So. 2d 26 (Fla. 1st DCA 1997) (en banc), the First District Court of Appeal held that 

it lacked appellate jurisdiction to review a non-final order denying a motion to 

dismiss. Id. at 27. The trial court below determined that there were insufficient facts
24

to decide the issue of workers’ compensation immunity, but specifically noted that 

“[t]his determination does not mean that this Court may not ultimately be presented

with sufficient facts to determine this issue as a matter of law.” Id. at 28. On appeal, 

the majority held, in applying the Florida Supreme Court’s decision in Hastings, that 

a non-final order denying a motion to dismiss based on workers’ compensation 

immunity must expressly determine, as a matter of law, that workers’ compensation 

immunity is unavailable. Id. at 29-30. However, Judge Wolf, specially concurring, 

raised a significant concern regarding appeals from orders denying motions to 

dismiss, as opposed to orders denying motions for summary judgment, which deny 

a party’s claim for workers’ compensation immunity, and stated as follows:

In these cases, there can be no disputed facts. The decision concerning 

the motion must assume that all the facts in the complaint are taken as 

true and all inferences are drawn in favor of the plaintiff. Thus, the 

denial of the motion cannot be based on disputed facts, but must 

constitute a legal ruling on a given set of facts.

Id. at 31-32 (citation omitted).

Judge Wolf’s reasoning is even more persuasive in the context of Citizens’ 

sovereign immunity. The Appellees do not contest that Citizens is entitled to 

sovereign immunity as a matter of law as to all statutory bad-faith claims. Thus, the 

only issue before the trial courts was whether the complaints contained bad-faith 

allegations from which Citizens was immune. Unlike a motion for summary 
25

judgment, this legal determination cannot be based upon disputed facts at the 

pleading stage on a motion to dismiss. Further, as Judge Wolf aptly notes:

As a practical matter, orders denying motions to dismiss or motions for 

summary judgments will often be drafted by a plaintiff’s attorney or by 

a trial judge who may be gun-shy of an appeal. We can expect that such 

orders will simply deny the motion without explanation or be drafted to 

be ambiguous. Thus, many parties entitled to immunity may be 

forced to go to trial.

Id. at 31 (Wolf, J., specially concurring) (emphasis added). This last sentence rings 

especially true in the instant cases. If Citizens is denied appellate review of the orders 

at issue in these appeals, it will be forced to litigate a plethora of claims, although, 

as will be shown infra, it is in fact sovereignly immune from each of them.

As reflected in this discussion, workers’ compensation immunity substantially 

differs from sovereign immunity from suit as invoked by Citizens in the instant 

appeals. Citizens’ claim for sovereign immunity from suit turns on the allegations in 

the complaints, rather than on an affirmative defense that requires proof of specific 

facts. Any analogy between rule 9.130(a)(3)(C)(xi) and rule 9.130(a)(3)(C)(v) is 

accordingly unpersuasive.

F. The majority’s interpretation of the rule will lead to an absurd result

Common sense and logic militate against the majority’s interpretation of the 

rule. “[T]he rules of construction applicable to statutes also apply to the construction 

of rules.” Brown, 715 So. 2d at 243. Thus, “the Court should not interpret a [rule] in 

a manner resulting in unreasonable, harsh, or absurd consequences.” Fla. Dep’t of 
26

Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1270 (Fla. 2008). If 

a party raises only one argument in a motion to dismiss a complaint, an argument 

that requires the trial court to make a legal determination based on the allegations 

in the complaint, as opposed to developed or undeveloped factual matters, and the 

trial court denies the motion to dismiss, then the trial court has necessarily made a 

legal determination as to the legal argument raised in the motion. If that legal 

argument was a party’s claim that it is entitled to sovereign immunity from 

defending itself from the allegations in the complaint, then the trial court, by denying 

the motion, has determined, as a matter of law, that the party is not entitled to 

sovereign immunity based on the allegations in the complaint. 

In the instant cases, it is the allegations themselves that form the foundation 

for Citizens’ motions to dismiss. It is irrelevant how the facts and evidence might 

develop during litigation. Citizens has only argued that it is sovereignly immune, as 

a matter of law, from defending against the Appellees’ allegations of bad-faith. Thus, 

by denying the motions to dismiss, the trial courts have necessarily determined, as a 

matter of law, that Citizens is not sovereignly immune from such allegations. These 

legal determinations are reviewable under rule 9.130(a)(3)(C)(xi).

G. Conclusion as to the issue of jurisdiction

In conclusion, rule 9.130(a)(3)(C)(xi) does not limit appeals to non-final 

orders that expressly state that the trial court has determined, as a matter of law, that 
27

a party is not entitled to sovereign immunity because: (1) the plain meaning of the 

text of rule 9.130(a)(3)(C)(xi) does not specify that such orders contain any express 

language; (2) the purpose of the amendment of rule 9.130 to include subsection 

9.130(a)(3)(C)(xi) was to avoid vitiating the protections of sovereign immunity from 

suit by allowing appeals from non-final orders denying a party’s claim that it is 

entitled to such immunity; (3) the case law does not support the majority’s 

interpretation of the rule; (4) rule 9.130(a)(3)(C)(v), in the fact-heavy workers’ 

compensation immunity context, cannot be analogized to rule 9.130(a)(3)(C)(xi), 

which covers the subject of entitlement to sovereign immunity; and (5) to conclude 

otherwise would lead to an absurd construction of rule 9.130(a)(3)(C)(xi), as it 

would arbitrarily force a party to litigate and defend against a claim from which it 

has sovereign immunity from suit.7 As the Florida Supreme Court has stated, a nonfinal order will be appealable pursuant to rule 9.130(a)(3)(C)(xi) if it is clear that the 

 7 Again, none of this is to say that an order denying a party’s claim for sovereign 

immunity is appealable per se. In some circumstances, if it is possible that there are 

factual issues in dispute concerning the existence of sovereign immunity, then rule 

9.130(a)(3)(C)(xi) does not allow an appeal from a non-final order that does not 

elaborate the basis for the trial court’s ruling in denying the motion to dismiss. See 

Pozos, 42 Fla. L. Weekly D418 at *5. Similarly, if it is clear that the trial court did 

not address the issue of sovereign immunity, such as where the trial court abates its 

decision as to sovereign immunity, then rule 9.130(a)(3)(C)(xi) does not permit 

appellate review. Sosa, 215 So. 3d at 91. However, neither of those circumstances 

are present here.
28

order determines “entitlement to sovereign immunity where the case involves a 

pure legal question.” Beach Cmty. Bank, 150 So. 3d at 1113 (emphasis added).

Accordingly, I respectfully disagree with the majority’s conclusion that we 

lack jurisdiction to review the unelaborated non-final orders denying Citizens’ 

motions to dismiss in the instant cases where it is clear that the trial courts rejected, 

as a matter of law, Citizens’ claims that it is entitled to sovereign immunity from the 

bad-faith allegations in the complaints.

II. Immunity

Although the majority has concluded that we lack jurisdiction to review the 

orders on appeal, I have chosen to address the merits in my dissent in order to 

demonstrate why we should not treat unelaborated orders as non-reviewable orders. 

If we are precluded from reviewing the five non-final orders in these consolidated 

interlocutory appeals, Citizens, which is entitled to sovereign immunity from 

defending itself against first-party bad-faith claims, will be forced to litigate the 

plaintiffs’ claims until final judgments are rendered solely because the trial courts 

issued unelaborated orders. Thus, Citizens is being denied the very protection it was 

granted by statute. Citizens moved to dismiss two counts in each of the Appellees’ 

complaints, which are styled as breach of contract and declaratory judgment claims, 

but which rely on first-party bad-faith allegations as the basis for relief, and Citizens 

is sovereignly immune from such first-party bad-faith claims. Because the 
29

Appellees’ breach of contract and declaratory judgment counts actually allege firstparty bad-faith regarding Citizens’ claims handling process, the trial courts erred by 

denying Citizens’ motions to dismiss these claims. These orders, if reviewable on 

appeal, would therefore necessarily require reversal on appeal. 

A. Citizens’ immunity from first-party bad-faith causes of action

By way of necessary background, I note that first-party bad-faith causes of 

action did not exist in the common law, but were created by section 624.155 of the 

Florida Statutes. See Citizens Prop. Ins. Corp. v. Perdido Sun Condo. Ass’n, 164 So. 

3d 663, 667 (Fla. 2015). Section 624.155(1)(a)1. provides:

(1) Any person may bring a civil action against an insurer when such 

person is damaged:

(a) By a violation of any of the following provisions by the insurer:

1. Section 626.9541(1)(i), (o), or (x)[.]

Section 626.9541(1)(i), Florida Statutes, in turn, includes a list of unfair claim 

settlement practices that may, if properly pled, form the basis of a first-party badfaith cause of action. For example, allegations that the insurer “fail[ed] to adopt and 

implement standards for the proper investigation of claims” and “den[ied] claims 

without conducting reasonable investigations based upon available information,” are 
30

elements in support of a party’s claim that the insurer acted in bad-faith.8 §§ 

626.9541(1)(i)(3)(a, d).

However, Citizens is entitled to sovereign immunity from these first-party 

bad-faith allegations. See § 627.351(6)(s)1., Fla. Stat. (“There shall be no liability 

on the part of, and no cause of action of any nature shall arise against, any 

assessable insurer or its agents or employees . . . for any action taken by them 

in the performance of their duties or responsibilities under this subsection.”) 

(emphasis added); Perdido Sun Condo. Ass’n, 164 So. 3d at 668 (holding that the 

Legislature’s waiver of Citizens’ sovereign immunity from suit did not include firstparty bad-faith claims brought pursuant to section 624.155(1)). To reiterate, such 

immunity is an immunity from suit, which means that the cause of action may not 

be brought against Citizens at all and that Citizens is immune from having to defend 

itself against such claims. Citizens Prop. Ins. Corp. v. Garfinkel, 25 So. 3d 62, 64 

(Fla. 5th DCA 2009) (“The Legislature . . . endowed Citizens with immunity against 

all liability and suit apart from five specific exceptions[.]”) (emphasis added), 

approved of by Perdido Sun Condo. Ass’n, 164 So. 3d at 667, disapproved of on 

other grounds by Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So. 3d 344 

(Fla. 2012).

 8 There are other requirements and elements that must be met in order to prevail on 

a first-party bad-faith cause of action, but because they are not relevant to these 

appeals, I decline to discuss them here.
31

Thus, in the instant cases, the specific issue before this Court on the merits 

would be whether the counts identified by Citizens in the Appellees’ complaints 

depend upon bad-faith allegations and are, therefore, claims from which Citizens is 

sovereignly immune. If such counts, as pled, are bad-faith claims, then they must be 

dismissed. 

Citizens contends that the breach of contract and declaratory judgment counts 

in each of the Appellees’ complaints are riddled with bad-faith allegations 

concerning the “proper” handling of the insurance adjustment process. I agree. In 

fact, the “Breach of Contract” counts are not only riddled with bad-faith allegations, 

they are actually premised on bad-faith allegations. Each of the claims at issue are 

premised on the claim that Citizens failed to “properly investigate or adjust” the 

Appellees’ insurance claims. The “Declaratory Judgment” counts are premised on 

the Appellees’ allegations that Citizens “failed to satisfy its duty to adjust” and failed 

to “properly investigate” the claims. All of the Appellees’ breach of contract and 

declaratory judgment claims contain variations of these allegations. 

These bad-faith allegations are completely irrelevant to any viable breach of 

contract or declaratory judgment claim against Citizens, but are instead first-party 

bad-faith claims regarding Citizens’ handling of the insurance adjustment process, 

claims from which Citizens is sovereignly immune. Perdido Sun Condo. Ass’n, 164 

So. 3d at 666-67 (“Although the Legislature codified Citizens’ duty to handle claims 
32

in good faith, see § 627.351(6)(s) 2., Fla. Stat., the Legislature never listed statutory 

first-party bad faith claims as one of the exceptions to Citizens’ immunity.”). 

The notion that these are not statutory bad-faith claims simply because they 

contain a fleeting reference to a breach of contract or because they are not called 

statutory bad-faith claims should be rejected. While there are few Florida cases on 

point, federal courts applying Florida law have addressed similar attempts to 

disguise a statutory bad-faith claim as a breach of contract claim. These courts 

concluded that absent a cause of action under section 624.155, there can be no 

liability stemming from allegations concerning an insurer’s lack of good faith in the 

performance of its contractual obligations. See Portofino S. Condo. Ass’n of W. 

Palm Beach, Inc. v. QBE Ins. Corp., 664 F. Supp. 2d 1265, 1268 (S.D. Fla. 2009) 

(“Portofino’s allegations that QBE failed to ‘reasonably’ and ‘promptly’ investigate 

and pay its claim are analogous to the term ‘wrongful’ which would imply a statutory 

bad faith claim under § 624.115.”) (internal quotation marks omitted); Nirvana 

Condo. Ass’n v. QBE Ins. Corp., 589 F. Supp. 2d 1336, 1340 (S.D. Fla. 2008) 

(“Nirvana’s claim is based on an implied contractual obligation based upon its 

reasonable contractual expectations. Nevertheless, because the factual allegations 

underlying its claim are based upon QBE’s failure to fairly and promptly 

perform under its obligations in the contract, that contractual claim can only 

be asserted, if at all, together with the extra-contractual bad faith claim under 
33

section 624.155.”) (emphasis added); Quadomain Condo. Ass’n v. QBE Ins. Corp., 

No. 07-60003-CIV-MORENO, 2007 WL 1424596, at *4 (S.D. Fla. May 14, 2007) 

(“Quadomain’s claim [for breach of implied warranty of good faith and fair dealing] 

is actually a claim for statutory bad faith, controlled by section 624.155 of the Florida 

Statutes, which cannot proceed until the underlying coverage dispute has been 

resolved.”). These federal cases are persuasive. The Appellees’ allegations of badfaith cannot survive outside of a cause of action under 624.155, and, as I previously 

discussed, Citizens is sovereignly immune from statutory bad-faith causes of action 

under section 624.155. 

To better illustrate what the Appellees are actually alleging as the basis for 

their breach of contract and a declaratory judgment claims, the language utilized by 

one of Appellees is being provided in this opinion. For example, in lower tribunal 

case number 14-32096, which is appellate case number 3D16-854, count 5 of the 

amended complaint is a claim for a declaratory judgment. In this count, the plaintiff 

states the following:

76 Plaintiff seeks a declaration from this court that the duty to adjust 

and investigate a loss, which is contained in the loss payment condition 

of the policy, is a condition precedent to any other duty or applicable 

condition or claim of performance by Defendant under this insurance 

contract, and that as a condition precedent, Defendant must allege and 

prove satisfaction of all conditions precedent before affirmatively 

asserting compliance with any other provision or condition in the 

contract.
34

The paragraphs that follow identify the contract at issue, the alleged loss, and 

the denial of the claim. The remainder of the paragraphs allege that Citizens ignored 

its duty in the contract to properly investigate and adjust the claim, that the duty to 

adjust contemplates a duty to properly investigate, and that Citizens’ compliance 

with this duty is a condition precedent to which Citizens must present proof of 

satisfaction.

88 Plaintiff submits that where there is no agreement as to a denial or 

application of an exclusion, Defendant cannot claim compliance with 

the loss payment condition to ‘adjust’ the claim without first alleging 

and proving compliance with its duties to conduct a proper 

investigation imposed by law.

89 Logically, Plaintiff states that the loss payment condition/duty to 

adjust the loss must occur before any determination of coverage and is 

thus a condition precedent to any claim of performance.

. . . .

91 Plaintiff’s rights to a fair adjustment of the claim by law and under 

this insurance policy is dependent upon the facts and the law of 

contractual construction applicable to the facts . . . .

92 The parties have adverse interests. The issue of Defendant’s legally 

imposed duty to investigate losses and the devastating results that a 

failure to fulfill such a duty has on insureds, represents an actual, 

present, adverse and antagonist interest in the subject matter, in both 

fact and law.

As these allegations make clear, the plaintiff is seeking a declaration from the 

trial court that Citizens must allege and prove, as a condition precedent, that it “fairly 

and properly” investigated and adjusted the plaintiff’s claims. But if there was any 
35

doubt as to what the plaintiff is seeking, one need look no further than the 

WHEREFORE clauses, which state the following: 

93.01 that the loss payment condition containing the duty to adjust and 

fully investigate the loss is a condition precedent to a determination of 

coverage.

93.02 that Defendant must allege and prove satisfaction of the loss 

payment condition duty to adjust the loss as a condition precedent prior 

to determining coverage [regardless of whether coverage is ultimately 

acknowledged or denied].

93.03 Defendant cannot ipse dixit claim that whatever coverage 

decision it makes is a proper adjustment as that term is construed by 

law absent allegations and proof of satisfaction of all conditions 

precedent to such a loss, and 

93.04 That Plaintiff be awarded its attorney’s fees and costs for seeking 

this declaration of rights.

(bracketed material in original).

Allegations of this form appear in all of the cases on appeal. It is therefore 

clear that the Appellees cannot recover what they seek in their declaratory judgment 

claims because whether Citizens “fairly” or “properly” investigated or adjusted the 

Appellees’ insurance claims are issues that are only relevant in bad-faith litigation, 

and Citizens is sovereignly immune from such litigation. See §§ 624.155(1)(a)1., 

626.9541(1)(i)(3)(a, d); Perdido Sun Condo. Ass’n, 164 So. 3d at 666-67.
36

In fact, what the Appellees seek in their declaratory judgment claims is to shift 

the burden, forcing Citizens to first prove, as a condition precedent, that it properly 

investigated and adjusted the Appellees’ claims before the issue of coverage can 

arise. Thus, the Appellees seek a declaration from the trial courts that Citizens must 

actually prove the absence of bad-faith as a condition precedent before the Appellees 

are required to prove that a breach of contract even occurred.

The breach of contract claims are brought under the same bad-faith rubric—

the failure to properly investigate and adjust the claim. The issue, however, cannot 

be whether Citizens properly investigated or adjusted the claim, as Citizens 

possesses sovereign immunity from such issues. The issue in an insurance breach 

of contract claim is whether the Appellees suffered a covered loss, and if so, whether 

Citizens fully compensated them for the loss under the contract.

The five complaints at issue in these appeals contain nearly identical language 

except for the address of the property, the date of the alleged loss, and the date the 

claim was filed. The breach of contract claims are not premised on the failure to 

pay for the losses, but rather on the failure to properly adjust the claims by failing 

to properly investigate the claims. As will become readily obvious by carefully 

reviewing the below example, if the bad-faith allegations are removed, each of the 

breach of contract claims would fail to state a cause of action.
37

The breach of contract claim in appellate case number 3D16-1457 states in its 

entirety as follows.

51 Plaintiff re-alleges and re-avers the allegations common to all 

counts above as though restated fully herein.

52 Plaintiff and Defendant entered into a contract which provided 

insurance over the Plaintiff’s property per exhibit A.

53 Plaintiff incurred the October 26, 2015 claim during the term of 

the policy and suffered damages as stated above for said loss.

54 Defendant failed to properly adjust the claim by failing to 

properly investigate the same pursuant to the loss payment 

condition of the contract and the law [F.S. § 626.877, F.S. §626.878 

& Fla. Admin. Code §69B-220.201] thus breaching the loss payment 

condition of the policy which is a material breach of the contract, 

directly resulting in damages to the Plaintiff. Moreover, the breach of 

the loss payment condition triggered a violation of other contractual 

conditions and also a violation by Defendant to properly adjust the 

claim within 90 days of the casualty, resulting in damages in the amount 

in controversy alleged above to Plaintiff.

(emphasis added) (bracketed material in original).

WHEREFORE, Plaintiff demands judgment for damages in the 

above amounts or as the proofs may show against Defendant, together 

with Attorney’s fees and costs, pursuant to Statute, and such other relief 

as this Court deems meet and proper or equitable.

Respectfully, this is not a case where the two counts in each complaint that 

are at issue here merely contain “extraneous allegations condemning Citizens’ 

adjustment practices.” These counts in each of the subject complaints are premised 

on the alleged inadequacy of Citizens’ adjustment practices, and they form the very 
38

foundation of the breach of contract and declaratory judgment claims. They, 

therefore, cannot stand as a matter of law. 

If the bad-faith allegations or “extraneous language” were removed from 

paragraph 54 of the complaint, the breach of contract claim would fail to state a 

cause of action because the only breach alleged is the failure to properly adjust the 

claim by failing to properly investigate the claim.

Nevertheless, if any of the Appellees wish to amend their complaint to state a 

cause of action for breach of contract on grounds they are legally permitted to pursue, 

they certainly may do so. Citizens announced at oral argument that it does not object 

to defending itself against such claims. What the Appellees cannot do, however, is 

pursue claims premised on Citizens’ adjustment practices. 

Additionally, even if these statutory bad-faith allegations were not barred by 

Citizens’ sovereign immunity, then it would still be error to permit the Appellees to

litigate such bad-faith claims while they are litigating breach of contract claims. It is 

well settled that a breach of contract claim and a first-party bad-faith claim may not 

be tried together. Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1276 (Fla. 2000) (“We 

continue to hold . . . that bringing a cause of action in court for violation of section 

624.155(1)(b)1 is premature until there is a determination of liability and extent of 

damages owed on the first-party insurance contract. . . . Such a claim should be 

dismissed as premature.”); GEICO Gen. Ins. Co. v. Harvey, 109 So. 3d 236, 239 
39

(Fla. 4th DCA 2013); Maryland Cas. Co. v. Alicia Diagnostic, Inc., 961 So. 2d 1091, 

1092 (Fla. 5th DCA 2007) (stating that “an insurer would be prejudiced by having 

to litigate either a bad faith claim or an unfair settlement practices claim in tandem 

with a coverage claim, because the evidence used to prove either bad faith or unfair 

settlement practices could jaundice the jury’s view on the coverage issue”); see 

also Progressive Select Ins. Co. v. Shockley, 951 So. 2d 20, 21 (Fla. 4th DCA 2007) 

(“[The insurer] will suffer irreparable harm, which includes discovery of its accident 

file, if it is forced to defend against both the [uninsured motorist] claim and the bad 

faith claim simultaneously.”). It would no doubt prejudice an insurer to litigate a 

breach of contract action at the same time that it is defending against an insured’s 

first-party bad-faith allegations.

B. Conclusion on Citizens’ immunity

In summary, the Appellees have alleged that Citizens has failed to adjust their 

insurance claims by failing to properly investigate their claims. This bad-faith 

language is not merely extraneous language, which could simply be stricken. The 

Appellees’ breach of contract and declaratory judgment claims are actually premised 

on these statutory bad-faith allegations and if the bad-faith allegations are removed, 

these claims would fail to state a cause of action. If the Appellees are dissatisfied 

with Citizens’ coverage determination or the amount Citizens is willing to pay to 

cover the loss, they can file a breach of contract claim disputing those 
40

determinations—not disputing whether Citizens acted in good faith when it arrived 

at those determinations or the means by which they processed the claims.

Because the allegations contained in the breach of contract and declaratory 

judgment counts in the complaints are actually allegations concerning statutory badfaith, from which Citizens is sovereignly immune, the trial court erred by denying 

Citizens’ motions to dismiss as to those counts. Accordingly, we should exercise 

jurisdiction under rule 9.130(a)(3)(c)(xi), reverse the trial courts’ orders on appeal, 

and remand with instructions to dismiss the relevant counts in the Appellees’ 

complaints without prejudice.

III. Recommendations

A. Recommendation to the trial courts

Immunity from suit is a valuable protection. If a defendant who is entitled to 

immunity from suit is erroneously required to litigate the case and to stand trial, that

individual or entity has lost the right bestowed by statute to be protected from even 

being named as a defendant, thereby rendering the statutory protection 

meaningless. Keck, 104 So. 3d at 366. This problem can be easily remedied if the 

trial courts simply issue orders that clarify the trial court’s ruling on a motion to 

dismiss or a motion for summary judgment where the issue of immunity is raised 

and litigated. The order should state whether the motion for dismissal or for 

summary judgment on the claim of immunity is being denied as a matter of law, and, 
41

if not, why not. Appellate review should not be thwarted by the issuance of an 

unelaborated order.

B. Certified Question and Recommendation to the Florida Supreme 

Court

This issue has resulted in numerous appeals in this Court and the other 

appellate courts. Because immunity from suit provides an important and valuable 

protection, I recommend that the Florida Supreme Court accept and address the 

following certified question: 

Under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi), must a 

trial court’s order expressly state that it has determined, as a matter of 

law, that the defendant is not entitled to sovereign immunity in order 

for the district courts of appeal to have jurisdiction to review the nonfinal order, or do the district courts of appeal have jurisdiction to review 

the non-final order if the issue of immunity turns on a pure question of 

law?

I also recommend that the Florida Supreme Court request that the Florida Bar 

Appellate Court Rules Committee submit a proposed amendment to rule 

9.130(a)(3)(C)(xi) requiring trial courts to articulate the basis of their ruling on 

immunity determinations.