This Court's OpinionsIn Citizens Property Insurance Corp. v. Sosa, 215 So.3d 90 (Fla. 3d DCA 2016), a state-created insurer (Citizens) sought to appeal a trial court order denying the insurer's motion to dismiss an insured's statutory, first-party bad faith claims on grounds of sovereign immunity. Citizens contended that the order was an appealable non-final order under the rule at issue here, Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi).
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, 242 So.3d 1152, 2017 WL 621233 (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
Case law interpreting this provision holds uniformly that an order denying summary judgment on the basis of workers' compensation immunity is not appealable under rule 9.130 unless the trial court's order expressly provides that it is making a determination that, as a matter of law, the party is not entitled to immunity. The only reported cases construing these newly-adopted amendments are Citizens Property Insurance Corp. v. Sosa, 215 So.3d 90, 2016 WL 6992583 (Fla. 3d DCA Nov. 30, 2016) and Taival v. Barrett, 204 So.3d 486 (Fla. 5th DCA 2016), both released after oral argument was held in the instant case.In Sosa, another panel of our court rejected the argument that the order under review was appealable as a nonfinal order that determined Citizens was not entitled to sovereign immunity: "Here, the trial court's order fails to state that, as a matter of law, sovereign immunity is not available to Citizens.
The majority interprets this rule as including the requirement that an order "expressly" determine entitlement to sovereign immunity, although the word "expressly" does not appear anywhere in the rule. In reaching this interpretation the majority: (1) relies on this Court's opinion in Citizens Property Insurance Corp. v. Sosa, 215 So.3d 90 (Fla. 3d DCA 2016), wherein this Court found it had no jurisdiction to address Citizens' interlocutory appeal because the record unequivocally reflected that the trial court did not even reach the issue of sovereign immunity; (2) avoids addressing the language found in two Florida Supreme Court cases that conflict with the majority's interpretation of the rule; and (3) relies on case law involving workers' compensation immunity, which, as will be discussed in this opinion, differs from sovereign immunity.A. Sosa
Because the trial court did not determine whether the City of Miami was entitled to, or not entitled to, sovereign immunity as a matter of law, and in fact ruled without prejudice to the City raising the application of sovereign immunity in further proceedings, we dismiss the appeal as one taken from a non-final, non-appealable order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(xi). See Key v. Almase, 43 Fla. L. Weekly D1804 (Fla. 3d DCA Aug. 8, 2018) ("Because the order does not make any findings regarding the issue of immunity, we dismiss the appeals as taken from a non-final, non-appealable order."); Miami-Dade Cty. v. Pozos, 242 So. 3d 1152, 1157 (Fla. 3d DCA 2017) ("This court does not have the authority to determine in the first instance whether, as a matter of law, the County is entitled to sovereign immunity."); Citizens Prop. Ins. Corp. v. Sosa, 215 So. 3d 90, 91 (Fla. 3d DCA 2016) ("[T]he 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).").