Opinion
No. SC14–1818.
04-17-2015
Douglas STALLEY, etc., Petitioner(s) v. Emily Lynn BOOZER, et al., Respondent(s).
Opinion
The Petitioners and Respondents have filed motions to dismiss. The motions are granted, and review is hereby discharged.
LABARGA, C.J., and QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.
PARIENTE, J., dissents with an opinion.
LEWIS, J., dissents with an opinion.
PARIENTE, J., dissenting.
I dissent from the order dismissing this case, in which we have already accepted jurisdiction to review a question certified by an en banc opinion of the Fifth District Court of Appeal to be of great public importance. In my view, this Court's precedent establishes that we unquestionably have the discretion to retain jurisdiction, and we should exercise that discretion here in order to ensure clarity and consistency in the application of Florida law.
In Boozer v. Stalley, 146 So.3d 139, 148 (Fla. 5th DCA 2014), the Fifth District receded from its precedent regarding discovery of attorney-client communications in a bad faith action. The Fifth District disallowed the discovery sought. Id. at 140. At the same time, it recognized “the uncertainty of the law in this important area ” and therefore certified a question of great public importance, for this Court to review, regarding whether attorney-client privileged communications are shielded from discovery in third-party bad faith litigation. Id. at 148 (emphasis supplied). The Fifth District's question specifically asks this Court to construe this Court's precedent in Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla.2005), and Genovese v. Provident Life & Accident Insurance Co., 74 So.3d 1064 (Fla.2011). See Boozer, 146 So.3d at 148.
By a vote of five to two upon proper petition for this Court to accept jurisdiction of the case on the basis of the Fifth District's certified question, this Court granted review. Accordingly, a majority of this Court has already determined that the question certified by the Fifth District is one of great public importance worthy of our consideration. Based on our precedent, this Court undoubtedly has discretion to retain jurisdiction of this case. See Pino v. Bank of New York, 76 So.3d 927, 930 (Fla.2011).
The question remains whether we should exercise that discretion to retain jurisdiction based on the facts and circumstances presented, even though the parties seek to dismiss the petition for review. I am of the view that we should, for several reasons.
First, the Fifth District has recognized the uncertainty of the law in this “important area” of bad faith and rendered its decision, which receded from its prior case law, based on its interpretation of this Court's cases of Ruiz and Genovese. Only this Court can definitively clarify the proper interpretation of Ruiz and Genovese to these circumstances and resolve the uncertainty in Florida law identified by the Fifth District's en banc opinion.
The fact that the underlying bad faith claim in this case has now, apparently, been removed to federal court does not dissuade me from the importance of answering the Fifth District's certified question. In fact, it does just the opposite.
The pending litigation in federal court actually furthers the importance of deciding this issue to give guidance to the federal courts who may be faced with bad faith actions that arise solely under Florida law. Those federal courts may, therefore, be confronted with the same “uncertainty” recognized by the Fifth District in this case—uncertainty that arises from an interpretation of this Court's case law regarding the scope of discovery in this context. While it is possible that the Eleventh Circuit Court of Appeals may, at some future point, certify a question to this Court on this issue, it is also equally possible that the federal courts may determine that they are bound by the precedent set forth by the Fifth District in this very opinion—precedent that relies on an uncertain interpretation of this Court's own prior cases that the Fifth District's en banc opinion asked us to decide.
While I express no view as to the merits of that opinion, I do note that the insurer's file and the attorney's file are generally critical to determining the issue of bad faith in a third-party bad faith action. See, e.g., Boston Old Colony Ins. Co. v. Gutierrez, 325 So.2d 416, 417 (Fla. 3d DCA 1976). Accordingly, for the sake of clarity and consistency in the application of Florida law, it is essential that we exercise our discretion to retain jurisdiction to decide this important question about the discoverability of evidence in a bad faith case that the Fifth District concluded had been rendered uncertain by our opinions in Ruiz and Genovese.
LEWIS, J., dissenting.
In entering the order to dismiss and discharge jurisdiction after jurisdiction was vested in this Court to review a decision certified to be of great public importance by the Fifth District Court of Appeal, this Court has allowed a decision below to stand without review that has radically altered forty years of well-established jurisprudence regarding essential discovery in third-party bad faith insurance actions in Florida. The personal motivations or desires of the parties are not relevant and do not control the actions of this Court where this Court has already accepted jurisdiction to review such a major shift in Florida law. Based on well-established Florida precedent, I would retain jurisdiction to review the matter on the merits, and existing law requires that our jurisdiction not be controlled by the strange maneuvers and unknown monetary considerations of private parties below where a decision has been entered that impacts the citizens of an entire region of this state. Consequently, I dissent from the dismissal of this case.
Although one party may not want this Court to review this matter to preserve a favorable decision contrary to existing law, and the other for reasons of its own accepts a significantly adverse decision, it is well settled that this Court may continue to exercise jurisdiction over a matter when it is both of great importance and “capable of repetition, yet evading review,” and particularly when a decision that changes the law has been certified by a district court to be of great public importance. Kight v. Dugger, 574 So.2d 1066, 1068 (Fla.1990) (citing Honig v. Doe, 484 U.S. 305, 318 (1988) ); see also Pino v. Bank of New York, 76 So.3d 927, 930 (Fla.2011) (citing Bell v. U.S.B. Acquisition Co., 734 So.2d 403 (Fla.1999) ; Enter. Leasing Co. v. Almon, 559 So.2d 214, 215 n.* (Fla.1990) ; Ervin v. Capital Weekly Post, Inc., 97 So.2d 464, 466 (Fla.1957) ); Holly v. Auld, 450 So.2d 217, 218 n. 1 (Fla.1984) (citing Pace v. King, 38 So.2d 823 (Fla.1949) ; Tau Alpha Holding Corp. v. Bd. of Adjustments, 171 So. 819 (Fla.1937) ). We have retained jurisdiction even when criminal sentences have been served, parties have passed away, or when a motion for voluntary dismissal is unopposed. See J.M. v. Gargett, 101 So.3d 352, 355 n. 4 (Fla.2012) (petitioner seeking writ of habeas corpus acknowledged that his case would be moot because he would have fulfilled his sentence); Dugger v. Grant, 610 So.2d 428, 429 n. 1 (Fla.1992) (party died during pendency of review of certified question of great public importance); Pino, 76 So.3d at 930 (jurisdiction retained despite the fact that parties had filed a notice of stipulated dismissal). The jurisdictional decision is not to be made exclusively by or for the parties because our jurisdiction over certified questions of great public importance continues to exist for the people of Florida under our Constitution, despite actions taken by parties after this Court has granted review. From the moment the underlying excess judgment was entered, the third-party beneficial rights became unalterably vested. See Travelers Ins. Co. v. Perez, 384 So.2d 971, 972–73 (Fla. 3d DCA 1980).
Additionally, this Court has concluded that concerns regarding the efficient use of judicial resources support the retention of jurisdiction of an otherwise moot matter. State v. Schopp, 653 So.2d 1016, 1018 (Fla.1995). In support of Petitioner Douglas Stalley's motion for voluntary dismissal, Respondents Emily Boozer and Virgil Wright, III, insist that the matter is now moot and seek to distinguish Pino, a case in which the petitioner had filed his initial brief before seeking voluntary dismissal. See 76 So.3d at 929. According to Boozer and Wright, dismissal now would conserve judicial resources because no briefs have been filed, oral argument has not occurred, and no opinion has issued from this Court. The opinion and decision of the district court below is the one the insurance company desires, so it is understandable that it desires to maintain that favorable decision. It is disingenuous to assert, as Respondents do here, that this case should be dismissed in the interest of conservation of judicial resources when a negligence action has morphed into: (1) a full jury trial with a final judgment of $11.1 million; (2) a medical malpractice action interwoven into the bad faith litigation with (a) intervention by insurance companies seeking equitable subrogation and (b) a counterclaim for bad faith insurance handling; (3) a pending refiled bad faith claim; and (4) several appeals to the Fifth District, with one opinion issued by that court to date. The federal file reflects that the federal district court issued a stay on August 14, 2014, to await the resolution of the state court claims. Stalley v. Allstate Ins. Co., No. 6:14–cv–01074–JA–DAB (M.D.Fla. Aug. 14, 2014) (Order). Significant judicial resources across this state have already been expended and continue to be expended to address this matter and the legal issues involved.
The consolidated medical malpractice claims, which are interwoven and interrelated with the bad faith litigation, are still pending before the trial court and the Fifth District.
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Moreover, even if the parties have allowed the case to be maneuvered into an unusual posture for the claimant and they believe the expenditure of time of this Court is no longer necessary, which I do not concede, the decision is contrary to forty years of Florida jurisprudence, Florida citizens will be impacted, and it is a question of great importance that is likely to occur again. The district court below, sitting en banc sua sponte after granting certiorari review, has acknowledged the potential uncertainty created by its decision and has recognized that existing Florida law requires that it certify the question as one of great public importance. This demonstrates that the matter is indeed of great public importance and in need of further review. Boozer v. Stalley, 146 So.3d 139, 140 (Fla. 5th DCA 2014) ; see also Pino, 76 So.3d at 929 ; Bell, 734 So.2d at 405 n. 1 ; Holly, 450 So.2d at 218 n. 1. The Fifth District below acknowledged as much when it explained that this issue has arisen before. Boozer, 146 So.3d at 145–48.
Finally, and most importantly, the Fifth District expressly receded from its own precedent in the decision below. Boozer, 146 So.3d at 140 (citing Dunn v. Nat'l Sec. Fire & Cas. Co., 631 So.2d 1103 (Fla. 5th DCA 1993) ). Dunn represented only one decision in a long line of Florida cases that have clearly and consistently held that in a third-party bad faith action, insurance companies and their attorneys cannot conceal their actions. See, e .g., United Servs. Auto. Ass'n v. Jennings, 707 So.2d 384, 385 (Fla. 1st DCA 1998), approved, 731 So.2d 1258 (Fla.1999) ; Gen. Accident Fire & Life Ins. Corp., Ltd. v. Boudreau, 658 So.2d 1006 (Fla. 5th DCA 1994) ; Dunn, 631 So.2d at 1109 (citing Cont'l Cas. Co. v. Aqua Jet Filter Sys., Inc., 620 So.2d 1141 (Fla. 3d DCA 1993) ; U.S. Fire Ins. Co. v. Clearwater Oaks Bank, 421 So.2d 783 (Fla. 2d DCA 1982) ; Aaron v. Allstate Ins. Co., 559 So.2d 275 (Fla. 4th DCA), rev. denied, 569 So.2d 1278 (Fla.1990) ; Koken v. Am. Serv. Mut. Ins. Co., Inc., 330 So.2d 805 (Fla. 3d DCA 1976) ; Stone v. Travelers Ins. Co., 326 So.2d 214 (Fla. 3d DCA 1976)); Boston Old Colony Ins. Co. v. Gutierrez, 325 So.2d 416 (Fla. 3d DCA 1976). In overruling Dunn, the Fifth District relied upon and misapplied decisions of this Court, Ruiz and Genovese, which addressed only first-party bad faith claims, and did not in any way approve or sanction the issue involved in the third party claim context that is at issue here.
Although I do not specifically address whether upon complete review the Fifth District arrived at the correct result, it is clear that the decision below has for that district drastically changed forty years of precedent regarding discovery in third-party bad faith actions. Indeed, if such a change is to occur, it should result from a reasoned debate by this Court, not based upon the maneuvers here, but with appropriate consideration given to the role of precedent, and not from the interests—the full extent of which is uncertain—of isolated parties who, after this Court has granted review, maneuver and arrange between themselves to keep the decision below standing. I would exercise the discretionary jurisdiction of this Court and review the decision below. To do otherwise explodes a hole in our constitutional jurisdictional structure. Therefore, I dissent from the order which discharges jurisdiction in this case.