       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 27, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-2841
                         Lower Tribunal No. 09-78710
                             ________________


                              Melvin Lakechea,
                                    Appellant,

                                        vs.

                     Magnolia Insurance Company,
                                    Appellee.

     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Gisela Cardonne Ely, Judge.

       Alvarez, Carbonell, Feltman & DaSilva, PL, and Paul B. Feltman, for
appellant.

      Jamila G. Gooden, Senior Attorney, Florida Department of Financial
Services, Division of Rehabilitation and Liquidation, for appellee.

Before SHEPHERD, C.J., and SUAREZ and SALTER, JJ.

     SHEPHERD, C.J.

     Melvin Lakechea, an insured under a policy of homeowner’s insurance

issued by Magnolia Insurance Company, appeals a trial court order vacating an
order substituting Florida Insurance Guaranty Association (FIGA) in the stead of

Magnolia, which is insolvent, and staying the case below to allow Lakechea to

“proceed with any actions regarding this case with the [Circuit] Court of Leon

County Florida and/or the receiver for the insolvent insurer.” For the reasons

explained below, we reverse the order on appeal and remand for further

proceedings.

      This case arises out of a dispute between Lakechea and Magnolia for water

damage to his home, alleged to have been suffered on January 30, 2009. On April

30, 2010, while an action for damages brought by Lakechea against Magnolia for

recovery on the policy was pending in Miami-Dade County Circuit Court, the

Leon County Circuit Court entered a consent order appointing the Florida

Department of Financial Services (DFS) receiver, pursuant to Chapter 631 of the

Florida Statutes, for the purpose of the liquidation of Magnolia. Magnolia, by

notice, informed the Miami-Dade court of the consent order, and that, pursuant to

sections 631.50-70 of the Florida Statutes, it was henceforth the responsibility of

FIGA to process pending claims against Magnolia. Soon thereafter, Magnolia

moved and obtained an order dismissing it from the action. Lakechea, in turn,

submitted his claim to FIGA and sought to substitute FIGA in place of Magnolia in

the lawsuit.




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      Puzzlingly, after being dismissed from the lawsuit, Magnolia, through

private counsel separate from counsel for the receiver, objected to FIGA being

substituted in its place. Several motions, responses, and hearings later, the trial

court ordered that FIGA’s role in the instant action should be determined by the

Leon County Circuit Court, which appointed the receiver. This was error.

      We know of no authority to support a collateral transfer of this case to the

Leon County Circuit Court to determine whether FIGA should become a party to

the proceedings below, and the parties have provided us none. We therefore

reverse the order of the trial court transferring the case below to Leon County. See

Kuvin, Klingensmith & Lewis, P.A. v. Fla. Ins. Guar. Ass’n, 371 So. 2d 214 (Fla.

3d DCA 1979).

      When an insurer becomes insolvent, “FIGA is deemed the ‘insurer’ to the

extent of covered claims and has the same obligations as the insolvent insurer.”

Jones v. Fla. Ins. Guar. Ass’n, 908 So. 2d 435, 454 (Fla. 2005); see also, § 631.57,

Fla. Stat. (2010). Although there is a permanent stay on any action against DFS as

receiver, FIGA is amenable to suit in connection with any unpaid claims. Compare

§ 631.041, Fla. Stat. (2010) with § 631.57(2)(c). Accordingly, we reverse that

portion of the order vacating the order substituting FIGA and remand the case to

the trial court for further proceedings.

      Reversed and remanded with directions.



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