In Citizens Property Insurance Company v. Bertot, ____ So.3d ____ (Fla. 3rd DCA June 3, 2009), an insured homeowner sued Citizens for breach of the insurance policy for failing to pay a claim, and for breach of the covenant of good faith and fair dealing in failing to properly investigate the claim. Citizens argued that a claim for breach of the covenant of good faith and fair dealing is not cognizable in Florida, and is nothing more than a disguised bad faith claim. Citizens further argued that if the claim is cognizable, it is premature and must wait until coverage and the extent of damages is determined, just as in a bad faith case.
The trial court disagreed with Citizens, and allowed the claim to proceed. Citizens sought certiorari review from the 3rd DCA. After the petition and response were filed in this case, Citizens advised the 3rd DCA that in another case, the United States Court of Appeals for the Eleventh Circuit certified the questions presented in this case to the Florida Supreme Court. See, Chalfonte Condo Apartment Assoc. v. QBE Ins. Corp., No. 08-10009, 2009 WL 580775, at *7 (11th Cir. May 9, 2009). Apparently, Citizens thought that this information would assist them in obtaining relief, but indeed led to their undoing.
In order to obtain certiorari review, the petitioner must show, among other things, that the trial court departed from the essential requirements of the law. Upon being advised that the 11th Circuit was unsure how to proceed in this situation, the 3rd DCA concluded that the "essential requirements of the law"
are in vigorous flux, with divergent conclusions reached by diligent and experienced federal judges after extensive briefing and analysis of Florida law. Indeed, the U.S. circuit court of appeals for this circuit has engaged in the judicial equivalent of ‘your guess is as good as mine’ in certifying the questions to our Supreme Court. Against that backdrop, we cannot conclude that the trial court’s denial of the motion to dismiss was a departure from a settled legal principle.
Thus, the petition was denied.