Citizens Property Insurance Corp. v. Sosa , 2016 Fla. App. LEXIS 17694 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed November 30, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-2901
Lower Tribunal No. 15-16231
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Citizens Property Insurance Corp.,
Appellant,
vs.
Rafaela Sosa,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Migna Sanchez-Llorens, Judge.
Methe & Rockenbach and Kara Berard Rockenbach, Lauren J. Smith, and
Kristi Bergemann Rothell (West Palm Beach), for appellant.
Perry & Neblett and David Avellar Neblett and John A. Wynn, for appellee.
Before SUAREZ, C.J., and LAGOA and SALTER, JJ.
ON MOTION TO DISMISS
LAGOA, J.
Appellee, Rafaela Sosa (“Sosa”), moves to dismiss the appeal of a non-final
order denying Citizens Property Insurance Corporation’s (“Citizens”) motion to
strike certain bad faith allegations and dismiss and/or strike Count II and Count III
of Sosa’s complaint. The trial court’s order abates Count II and Count III of
Sosa’s complaint until coverage or extent of liability are determined. Because the
order appealed is a non-final, non-appealable order, we grant the motion to dismiss
for lack of jurisdiction.
The order on appeal denies Citizens’ motion to dismiss and abates
consideration of Counts II and III of Sosa’s complaint until a determination of
coverage is made. It is well-established that “[a]n order abating or staying an
action pending disposition of another action is not a reviewable non-final order.”
Pecora v. Signature Gardens, Ltd., 25 So. 3d 599, 599 (Fla. 4th DCA 2009). See
also Hedin v. Indian River Cty., 610 So. 2d 715 (Fla. 4th DCA 1992).
Citizens nonetheless argues that the order is appealable pursuant to Florida
Rule of Appellate Procedure 9.130(a)(3)(C)(xi), which provides for appeal of non-
final orders that determine “that, as a matter of law, a party is not entitled to
sovereign immunity.” Citizens’ assertion, characterizing the trial court’s order as
one determining that it is not entitled to sovereign immunity as a matter of law,
however, is not supported by the record. Significantly, the order on appeal does
not state that the motion to dismiss is denied on the basis that Citizens lacks
sovereign immunity. Instead, the order merely states that Counts II and III of
Sosa’s complaint are abated “until coverage or extent of liability are determined.”
Furthermore, a review of the transcript of the hearing on the motion to dismiss also
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shows that the trial court did not reach or rule on the issue of sovereign immunity.
Cf. Amcon Builders, Inc. v. Pardo, 120 So. 3d 1254, 1255 (Fla. 3d DCA 2013)
(finding order denying summary judgment on a claim of workers’ compensation
immunity not appealable “‘unless the trial court order specifically states that, as a
matter of law, such a defense is not available to a party’” (quoting Reeves v.
Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 821-22 (Fla. 2004))). Here, the
trial court’s order fails to state that, as a matter of law, sovereign immunity is not
available to Citizens. As such, the trial court’s order is not appealable pursuant to
Rule 9.130(a)(3)(C)(xi).
Because the order denying Citizens’ motion to dismiss is not reviewable
under Florida Rule of Appellate Procedure 9.130 as a non-final order, we grant
Sosa’s motion to dismiss the appeal for lack of jurisdiction.
Dismissed.
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