IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
JOHN D. ATKINSON, Case No. ______
Petitioner, County Case No. 01-1235-CC
vs. Division: X
STATE FARM MUTUAL
AUTOMOBILE INSURANCE CO.,
PETITION FOR WRIT OF CERTIORARI,
OR ALTERNATIVELY, WRIT OF MANDAMUS
Pursuant to Rule 9.100, Florida Rules of Appellate Procedure (2002), JOHN
D. ATKINSON petitions this court for a writ of certiorari quashing the abatement
of count II of Petitioner Atkinson's Complaint, currently pending before the lower
court and ripe for adjudication, or alternatively, for a writ of mandamus compelling
the Honorable Gaston J. Fernandez, County Court Judge in the County Court in
and for Hillsborough County, Florida, to lift the abatement and adjudicate the
BASIS FOR INVOKING JURISDICTION
This court has jurisdiction to issue writs of certiorari and mandamus
pursuant to Article V, section 5(b) of the Florida Constitution and Rule
9.030(c)(3), Florida Rules of Appellate Procedure. The order denying
Petitioner's motion to lift the abatement as to count II was rendered October 29,
2002. (App. N).
Certiorari is available because the order departs from the essential
requirements of law, causing irreparable harm to Petitioner for which there is no
adequate remedy at law. See, e.g., Kilgore v. Bird, 149 Fla. 570, 581, 6 So. 2d
541, 545 (Fla. 1941)(“The essential considerations are whether the judgment, or
the directions made a part of it, require an unauthorized proceeding or a departure
from the essential requirements of law and reasonably may cause substantial injury
for which no other adequate remedy is afforded by the law.”)
Alternatively, mandamus is also proper because the duty to exercise
jurisdiction and to timely hear and adjudicate matters before it which are ripe for
adjudication is a ministerial duty of the County Court judge. See Caruso v.
Baumle, 776 So. 2d 371, 372 (Fla. 5th DCA 2001)(“Mandamus lies to compel a
judge to rule on a case where there is no lawful basis to reserve ruling.”); Sea
Breeze Video, Inc. v. Federico, 648 So. 2d 226, 227 (Fla. 2d DCA
1994)(“Mandamus may lie if a court erroneously declines to accept or exercise
jurisdiction.”); Moody v. Moody, 705 So. 2d 708 (Fla. 1st DCA 1998)(“A writ of
mandamus may issue to require a timely ruling on a matter pending before a lower
This case arose when Petitioner, John Atkinson, sought to recover benefits
from Respondent, State Farm Mutual Automobile Insurance Company (hereinafter
“State Farm”), under a policy of long term disability insurance. (See App. A,
Exhibit 1). State Farm denied the claim for disability benefits on the ground that
the policy excluded coverage if the insured was entitled to workers' compensation
benefits. (App. B; App. D at 1-2).
In January 2001, Atkinson filed a two-count complaint against State Farm
alleging breach of contract (Count I), and violation of Florida's Unfair Insurance
Trade Practices Act, section 626.9541, Florida Statutes (Count II). (App. A).
State Farm answered and raised only one affirmative defense, that the entire claim
was barred by the policy exclusion pertaining to workers' compensation. (App.
B). State Farm also moved to dismiss Count II on the ground that it failed to state a
cause of action because the plaintiff had not yet obtained a judgment on the
underlying breach of contract claim contained in Count I. (App. B). On April
23, 2001, the lower court abated Count II pending a determination as to coverage
under Count I.
Atkinson subsequently filed a motion for partial summary judgment on the
issue of coverage under the State Farm policy. (App. C). In support of the
motion, Atkinson provided his own affidavit attesting to his continuing total
disability since November 26, 1999, the amount of his pre-accident earnings, and
the monthly amount of benefits he had received from all sources, including
workers’ compensation. (App. D). There were no disputed issues of fact.
Accordingly, State Farm did not present any evidence in opposition to Atkinson's
motion for summary judgment, but filed a memorandum of law opposing the
motion. (App. E). The only issue to be resolved in the case was a pure question
of law, that is, whether the State Farm policy excluded coverage to Atkinson under
the facts as contained in Atkinson's affidavit.
On August 20, 2001, the lower court entered an order denying Atkinson’s
motion for partial summary judgment and sua sponte granting summary judgment
as to Count I in favor of the defendant, State Farm. (App. F). The court found
that the exclusionary clause precluded Atkinson from recovering under the State
Farm policy because he was entitled to receive benefits under workers’
compensation law. (App. F at 1-2).
Atkinson timely appealed. On February 18, 2002, this court reversed the
summary judgment for State Farm and held that the policy exclusion for workers'
compensation did not bar Atkinson's claim for benefits. (App. G). This court
held that the plain language only excluded coverage “to the extent” of workers'
compensation coverage, and did not act as a complete bar to recovery. (App. G.
at 2). This court explained that because workers' compensation and other benefits
did not fully compensate Atkinson for the loss of income arising from his
disability, State Farm was obligated to pay the benefits due under the policy.
(App. G. at 5-7). This court determined as a matter of law that Atkinson was
entitled to benefits under the State Farm policy, reversed the summary judgment
entered in favor of State Farm, and remanded with instructions to grant Atkinson's
motion for summary judgment.1 (App. G at 7).
Following the remand, Atkinson filed a motion for entry of partial final
judgment as to count I, the breach of contract claim, and a motion to lift abatement
as to count II, which alleges violations of the Unfair Insurance Trade Practices Act.
(App. I & J). Atkinson filed his own affidavit in support of the motions. (App.
K). On October 16, 2002, the motions were heard by the lower court. (See
Transcript of Hearing, App. L). State Farm did not present any evidence for the
court's consideration, but argued strenuously that the court should enter a zero
judgment in spite of this court's earlier ruling in favor of Atkinson. (App. L at 7).
State Farm argued that it was entitled to set off workers' compensation benefits
against the $200.00 monthly benefit owed under its policy. (App. L at 8-11, 15).
Since Atkinson had received monthly workers' compensation disability benefits in
The appellate court also granted Atkinson's motion for attorneys' fees on appeal. Although
State Farm did not file a motion for rehearing as to the court's ruling on the merits, it did file a
motion to amend the circuit court's order granting fees, which the circuit court denied. State
Farm also filed a petition for writ of certiorari to the Second District Court of Appeal attacking
the circuit court's order granting fees, which the Second DCA denied on September 27, 2002.
None of those orders related to attorneys' fees are the subject of this petition for writ of certiorari.
excess of $200, State Farm argued that the benefits due were zero. (App. L at
8,11,15). State Farm urged the lower court that this court's earlier appellate ruling
left undecided the question of a set-off for workers compensation benefits. (App.
L at 8). The lower court agreed with State Farm's reasoning, but considered itself
bound by this court's prior ruling to enter judgment for Atkinson in the amount of
$2,400.00, representing a monthly benefit of $200.00 for twelve months. (App. L
at 15; App. M).
Nevertheless, at State Farm's urging, the lower court declined to lift the
abatement as to count II. (App. N). State Farm argued that the abatement could
not be lifted because there had been no final adjudication of liability and damages,
which is required before an insured may proceed with a bad faith claim against his
insurer. (App. L at 11). State Farm insisted that the grant of partial final
summary judgment in favor of Atkinson as to count I was error, and stated it would
appeal that ruling. (App. L at 17). Atkinson noted that the issue had already
been appealed and decided by the circuit court, and argued that State Farm was not
entitled to a second appellate decision on the same question of law. (App. L at
17-19). Nevertheless, the lower court declined to lift the abatement as to the bad
faith count. (App. N). It is that ruling that is the subject of this petition for writ
NATURE OF RELIEF SOUGHT
The nature of the relief sought by this petition is a writ of certiorari quashing
the abatement of count II of the complaint, or alternatively, a writ of mandamus
directing the lower court to lift the abatement.
A. Writ of Certiorari
The lower court departed from the essential requirements of law by its order
refusing to lift the abatement of count II, which alleges that State Farm acted in
bad faith and in violation of Florida's Unfair Insurance Trade Practices Act in the
handling of Atkinson's claim for disability benefits. The circuit courts may issue
a writ of certiorari to review non-final orders of the County Court that are not
otherwise reviewable by direct appeal as provided by law. See Rule 9.030(c)(3),
Florida Rules of Appellate Procedure. A writ of certiorari will be granted when a
non-final order of a lower court departs from the essential requirements of law,
resulting in a material injury that cannot be corrected on post-judgment appeal.
Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987); Kash n' Karry
Food Stores v. Smart, 814 So. 2d 530, 532 (Fla. 2d DCA 2002).
In the instant case, the lower court's order departed from the essential
requirements of law by refusing to lift an abatement and permit a claim that is ripe
for adjudication to proceed. See Harper v. E.I. DuPont De Nemours and Co., 802
So. 2d 505 (Fla. 4th DCA 2001)(granting a petition for writ of certiorari to review
an order denying a motion to lift a stay, finding the order departed from the
essential requirements of law, and quashing the stay). Atkinson will suffer a
material injury if he is denied access to the judicial process by the imposition of an
indefinite and unjustified abatement of his bad faith claim that has now accrued
and is ripe for adjudication. Id. at 511 (“Petitioners have a right to proceed in
their chosen forum . . . without undue delay.”). There is no adequate remedy at
law because the lower court's order refusing to lift the abatement is not an
appealable non-final order, and the unjustified delay in adjudication cannot be
corrected by a post-judgment appeal. See Art. V, § 5(b), Florida Constitution;
Rule 9.030(c)(1)(B), Florida Rules of Appellate Procedure.
First, this court must determine whether the lower court's order declining to
lift the abatement of Atkinson's bad faith claim was a departure from the essential
requirements of law. Under Florida law, an insured's first-party claim for benefits
must be resolved before a cause of action for bad faith against the insurer accrues.
See Vest v. Travelers Insurance Co., 753 So. 2d 1270, 1276 (Fla. 2000); Blanchard
v. State Farm Mutual Automobile Ins. Co., 575 So. 2d 1289 (Fla. 1991). Prior to
final resolution of the coverage issue, a claim against an insurer for bad faith is
premature and may not be maintained. Id., see also Allstate Insurance Co. v.
Baughman, 741 So. 2d 624, 625 (Fla. 2d DCA 1999). The determination of
liability under the policy includes the appellate process, and thus a bad faith claim
remains premature until the appellate process is concluded on the first-party claim,
or until the time for filing an appeal has passed. See United Auto. Insurance Co.
v. Tienna, 780 So. 2d 1010, 1011 n.4 (Fla. 4th DCA 2001); Michigan Millers
Mutual Insurance Co. v. Bourke, 581 So. 2d 1368 (Fla. 2d DCA 1991)(holding that
the trial court departed from the essential requirements of law by lifting the
abatement of a bad faith claim while an appeal of the lower court's summary
judgment determining that the insureds were entitled to uninsured motorist
coverage remained pending).
In light of this law, the lower court initial abatement of Atkinson's bad faith
claim was proper. However, the lower court's refusal to lift that abatement was a
departure from the essential requirements of law, because the bad faith claim has
now accrued and is ripe for adjudication. There has now been a final
determination that Atkinson is entitled to recover long term disability benefits
under State Farm's policy. In a prior decision, this court reversed a summary
judgment for State Farm, and remanded with instructions to enter summary
judgment for Atkinson on the issue of coverage. (App. G). Specifically, this
In the final judgment, the trial court determined that the language
excluding coverage “to the extent” it was covered by workers'
compensation acted as a total bar to recovery under the policy. We
Undoubtedly, if it were [State Farm's] intent that the policy be
supplemental insurance, it could have stated this purpose more clearly
as well. For example, it could have said “benefits will be reduced by
amounts payable . . . under workers' compensation,” as in Songe v.
Tennessee Life Ins. Co., 260 So. 2d 149 (La. App. 1972). However,
because we find the policy language to be ambiguous, and because no
duplication of benefits would occur, we must construe the language
against the insurer. We therefore determine that the exclusion is
inapplicable under the facts of this case, and [Atkinson] is entitled to
benefits under the State Farm policy. Accordingly, we reverse the
summary final judgment entered in favor of State Farm and remand
with instructions to grant Atkinson's motion for summary judgment on
the issue of coverage under the policy.
(See Appellate Order of the Circuit Court, dated February 18, 2002 and filed
February 25, 2002; App. G, at pages 2 and 7). This court's mandate as to the
above order issued on March 18, 2002. (Appendix H). State Farm did not seek
rehearing as to the above appellate order and opinion, nor did it seek further
discretionary review of it.
After remand, Atkinson moved the lower court to enter partial final
judgment in his favor on Count I of the Complaint, alleging entitlement to benefits
under the State Farm policy. (App. I). State Farm opposed the motion, but
offered no evidence to rebut Atkinson's claim. Instead, despite this court's prior
decision, State Farm argued that the workers' compensation benefits Atkinson had
received for his disability had to be set-off, or deducted from the benefits due
under State Farm's policy. (App. L at 8-11). Because the monthly workers'
compensation benefits Atkinson received exceeded the monthly benefit due under
the policy, State Farm argued that although Atkinson was covered, he was entitled
to zero benefits under the terms of the policy. (App. L at 11). The lower court
agreed with State Farm's construction of the policy, but considered itself bound by
this court's prior appellate opinion. (App. L at 15). The lower court therefore
entered partial final judgment for Atkinson against State Farm for $2,400.00, the
total amount of benefits due under the policy, plus interest. (App. M).
State Farm objected to Atkinson's request to lift the abatement of the bad
faith claim, arguing that the question of entitlement to benefits was not yet finally
determined because of its plan to bring an appeal to this court. (App. L at 17).
State Farm insisted that it would appeal the lower court's order, again arguing that
the lower court should have set-off the workers' compensation benefits, resulting in
zero benefits due under the policy. (App. L at 17). The lower court accepted
State Farm's argument regarding the abatement, and refused to lift it. (App. N).
Both State Farm and the lower court failed to understand the legal
significance of this court's prior decision, in which this court expressly held that
[Atkinson] “is entitled to benefits under the State Farm policy.” (App. G at 7).
This court's prior appellate decision has now become the law of the case. Brunner
Enterprises v. Dept. of Revenue, 452 So. 2d 550, 552 (Fla. 1984). It controls all
further proceedings below and on appeal. Id. A lower court cannot change the
law of the case as decided by the highest court hearing the case. Id. “Additionally,
it is a well-settled rule of law that 'the judgment of an appellate court, where it
issues a mandate, is a final judgment in the cause and compliance therewith by the
lower court is a purely ministerial act.'” Id., quoting O.P. Corp. v. Village of North
Palm Beach, 302 So. 2d 130, 131 (Fla. 1974).
As the Second District Court of Appeal has noted, a lower court “utterly
lacks the power to deviate from the terms of an appellate mandate.” Mendelson v.
Mendelson, 341 So. 2d 811, 814 (Fla. 2d DCA 1977); see also Savage v. Macy's
East, Inc., 719 So. 2d 1208, 1209 (Fla. 3d DCA 1998)(“A trial court does not have
discretionary power to alter or modify the mandate of an appellate court in any
way, shape, or form.”). Once this court issued a mandate, the question of whether
Atkinson was entitled to recover benefits under the State Farm policy was finally
determined. See Philip J. Padovano, Florida Appellate Practice, § 18.5 (2001).
[I]f the trial court has incorrectly decided a pure issue of law on
cross-motions for summary judgment, the effect of a reversal will be
to order the entry of a final judgment. In these situations, a reversal
by the appellate court effectively decides the entire case.
Padavano, § 18.5 at 270. Thus, the act of entering judgment for Atkinson in the
amount of benefits provided by the policy was a purely ministerial act, and the
lower court completely lacked any discretion to do otherwise in light of this court's
decision and mandate. Savage, 719 So. 2d 1209.
Thus, there has now been a final determination on the merits, through the
appellate process, that Atkinson is entitled to recover benefits under the State Farm
policy. On October 29, 2002, the lower court followed this court's mandate and
performed the ministerial act of entering judgment for Atkinson on Count I.
(App. M). Because Atkinson's entitlement to benefits under the State Farm policy
has been finally determined on appeal and is now the law of the case, neither party
has any right to further appellate consideration of that issue. See Graef v.
Hegedus, 827 So. 2d 394, 395 (Fla. 2d DCA 2002). Atkinson is therefore
entitled to proceed with his bad faith claim against State Farm.
In sum, Atkinson's bad faith claim is now ripe for determination, and the
lower court departed from the essential requirements of law by refusing to lift the
abatement of that claim. See Harper, 802 So. 2d at 511. This unjustified delay in
Atkinson's right of access to the courts results in an ongoing harm to Atkinson that
cannot be remedied by post-judgment appellate review. Atkinson therefore has no
adequate remedy at law. Atkinson respectfully requests that this court issue a
writ of certiorari quashing the abatement of Count II.
B. Writ of Mandamus
Alternatively, if this court determines that certiorari is not the correct
remedy, this court should enter a writ of mandamus compelling the lower court to
lift the abatement of Count II and adjudicate Atkinson's bad faith claim against
State Farm, which is now ripe for judicial determination. A writ of mandamus is
the appropriate vehicle to compel a lower court judge to rule upon a matter
pending before it within a reasonable time. Mason v Circuit Court, Fifth Judicial
Circuit, 603 So. 2d 94, 95 (Fla. 5th DCA 1992)(“Mandamus is the proper remedy to
compel a court to exercise its discretion and decide a cause, where there is no valid
reason to reserve ruling on the matter.”). When a lower court's delay in deciding a
matter has no lawful basis, mandamus will lie to compel the lower court to
consider and rule upon a matter before it. Quintana v. Barad, 528 So. 2d 1300,
1301 (Fla. 3d DCA 1988).
The duty to exercise jurisdiction and to timely hear and adjudicate matters
before it which are ripe for adjudication is a ministerial duty of the County Court
judge. See Caruso v. Baumle, 776 So. 2d 371, 372 (Fla. 5th DCA
2001)(“Mandamus lies to compel a judge to rule on a case where there is no lawful
basis to reserve ruling.”); Sea Breeze Video, Inc. v. Federico, 648 So. 2d 226, 227
(Fla. 2d DCA 1994)(“Mandamus may lie if a court erroneously declines to accept
or exercise jurisdiction.”); Moody v. Moody, 705 So. 2d 708 (Fla. 1st DCA
1998)(“A writ of mandamus may issue to require a timely ruling on a matter
pending before a lower tribunal.”).
In the instant case, there is no valid legal basis for the lower court to impose
any further delay upon the adjudication of Atkinson's bad faith claim. The lower
court erroneously believed that Atkinson's entitlement to benefits had not yet been
finally determined, and as a result the lower court improperly declined to lift the
abatement and allow the bad faith claim to proceed. Because the lower court
departed from the essential requirements of law by refusing to lift the abatement of
Atkinson's bad faith claim, Atkinson respectfully requests that this Court issue a
writ of mandamus compelling the lower court to lift the abatement.
Sharon H. Proctor, Esquire
Florida Bar No. 012807
376 Windward Way
Avon Lake, Ohio 44012
Lefferts L. Mabie, III, Esquire
Lefferts L. Mabie, III, P.A.
Florida Bar No. 0745601
Post Office Box 499
220 East Madison Street, Ste. 720
Tampa, Florida 33601
Attorneys for Petitioner
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been provided
by U.S. Mail to the Honorable Gaston J. Fernandez, County Court Judge,
Hillsborough County Courthouse, 419 Pierce Street, Tampa, Florida 33602-4022;
LEE CRAIG, Esquire, 6200 Courtney Campbell Causeway, Suite 1100, Tampa,
Florida 33607-5946, Counsel for Appellee, and LEFFERTS L. MABIE, III,
Esquire, Post Office Box 499, 220 East Madison Street, Suite 720, Tampa, Florida
33601-0499, co-counsel for Petitioner, this ____ day of November, 2002.
Sharon H. Proctor, Esquire
Florida Bar No. 012807
376 Windward Way
Avon Lake, Ohio 44012
Co-counsel for Petitioner
CERTIFICATE OF FONT COMPLIANCE
I HEREBY CERTIFY that this computer-generated brief is submitted in
Times New Roman 14-point type font in compliance with Rule 9.210, Florida
Rules of Appellate Procedure.
Sharon H. Proctor, Esquire
Florida Bar No. 012807
376 Windward Way
Avon Lake, Ohio 44012
Co-counsel for Petitioner