Lakechea v. Magnolia Insurance Co. ( 2014 )

Third District Court of Appeal
State of Florida
Opinion filed August 27, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-2841
Lower Tribunal No. 09-78710
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Melvin Lakechea,
Appellant,
vs.
Magnolia Insurance Company,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Gisela Cardonne Ely, Judge.
Alvarez, Carbonell, Feltman & DaSilva, PL, and Paul B. Feltman, for
appellant.
Jamila G. Gooden, Senior Attorney, Florida Department of Financial
Services, Division of Rehabilitation and Liquidation, for appellee.
Before SHEPHERD, C.J., and SUAREZ and SALTER, JJ.
SHEPHERD, C.J.
Melvin Lakechea, an insured under a policy of homeowner’s insurance
issued by Magnolia Insurance Company, appeals a trial court order vacating an
order substituting Florida Insurance Guaranty Association (FIGA) in the stead of
Magnolia, which is insolvent, and staying the case below to allow Lakechea to
“proceed with any actions regarding this case with the [Circuit] Court of Leon
County Florida and/or the receiver for the insolvent insurer.” For the reasons
explained below, we reverse the order on appeal and remand for further
proceedings.
This case arises out of a dispute between Lakechea and Magnolia for water
damage to his home, alleged to have been suffered on January 30, 2009. On April
30, 2010, while an action for damages brought by Lakechea against Magnolia for
recovery on the policy was pending in Miami-Dade County Circuit Court, the
Leon County Circuit Court entered a consent order appointing the Florida
Department of Financial Services (DFS) receiver, pursuant to Chapter 631 of the
Florida Statutes, for the purpose of the liquidation of Magnolia. Magnolia, by
notice, informed the Miami-Dade court of the consent order, and that, pursuant to
sections 631.50-70 of the Florida Statutes, it was henceforth the responsibility of
FIGA to process pending claims against Magnolia. Soon thereafter, Magnolia
moved and obtained an order dismissing it from the action. Lakechea, in turn,
submitted his claim to FIGA and sought to substitute FIGA in place of Magnolia in
the lawsuit.
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Puzzlingly, after being dismissed from the lawsuit, Magnolia, through
private counsel separate from counsel for the receiver, objected to FIGA being
substituted in its place. Several motions, responses, and hearings later, the trial
court ordered that FIGA’s role in the instant action should be determined by the
Leon County Circuit Court, which appointed the receiver. This was error.
We know of no authority to support a collateral transfer of this case to the
Leon County Circuit Court to determine whether FIGA should become a party to
the proceedings below, and the parties have provided us none. We therefore
reverse the order of the trial court transferring the case below to Leon County. See
Kuvin, Klingensmith & Lewis, P.A. v. Fla. Ins. Guar. Ass’n, 371 So. 2d 214 (Fla.
3d DCA 1979).
When an insurer becomes insolvent, “FIGA is deemed the ‘insurer’ to the
extent of covered claims and has the same obligations as the insolvent insurer.”
Jones v. Fla. Ins. Guar. Ass’n, 908 So. 2d 435, 454 (Fla. 2005); see also, § 631.57,
Fla. Stat. (2010). Although there is a permanent stay on any action against DFS as
receiver, FIGA is amenable to suit in connection with any unpaid claims. Compare
§ 631.041, Fla. Stat. (2010) with § 631.57(2)(c). Accordingly, we reverse that
portion of the order vacating the order substituting FIGA and remand the case to
the trial court for further proceedings.
Reversed and remanded with directions.
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