          Supreme Court of Florida
                                    ____________

                                    No. SC14-185
                                    ____________

              CITIZENS PROPERTY INSURANCE CORP., etc.,
                             Petitioner,

                                          vs.

        PERDIDO SUN CONDOMINIUM ASSOCIATION, INC., etc.,
                         Respondent.

                                   [May 14, 2015]

PARIENTE, J.

      The issue in this case is whether the Florida Legislature intended Citizens

Property Insurance Corporation, a state-created entity that provides property

insurance, to be liable for statutory first-party bad faith claims as an exception to

its statutory immunity from suit. The First District Court of Appeal in Perdido Sun

Condominium Ass’n v. Citizens Property Insurance Corp., 129 So. 3d 1210 (Fla.

1st DCA 2014), determined that the “willful tort” statutory exception to Citizens’

immunity applied to statutory first-party bad faith claims and certified conflict with

the Fifth District Court of Appeal’s decision in Citizens Property Insurance Corp.

v. Garfinkel, 25 So. 3d 62 (Fla. 5th DCA 2009), disapproved on other grounds by
Citizens Property Insurance Corp. v. San Perdido Ass’n, 104 So. 3d 344 (Fla.

2012), which held to the contrary that Citizens is statutorily immune. Additionally,

the First District passed upon the following question, which it certified to be of

great public importance:

      WHETHER THE IMMUNITY OF CITIZENS PROPERTY
      INSURANCE CORPORATION, AS PROVIDED IN SECTION
      627.351(6)(s), FLORIDA STATUTES, SHIELDS THE
      CORPORATION FROM SUIT UNDER THE CAUSE OF ACTION
      CREATED BY SECTION 624.155(1)(b), FLORIDA STATUTES[,]
      FOR NOT ATTEMPTING IN GOOD FAITH TO SETTLE
      CLAIMS?

Perdido Sun, 129 So. 3d at 1213.1

      We conclude, as more fully explained below, that a statutory first-party bad

faith cause of action under section 624.155(1)(b) is not an exception to the

immunity granted to Citizens by the Legislature. Accordingly, we quash Perdido

Sun, approve the reasoning of Garfinkel on this issue, and answer the certified

question in the affirmative.

                                 BACKGROUND

      After prevailing in a breach of contract action against its insurance company,

Citizens Property Insurance Corporation, Perdido Sun Condominium Association

sued Citizens a second time. In the second lawsuit, Perdido Sun alleged a statutory




      1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.


                                         -2-
first-party bad faith claim, pursuant to section 624.155(1), Florida Statutes (2009),

which provides in relevant part:

             (1) Any person may bring a civil action against an insurer
      when such person is damaged:
             ....
             (b) By the commission of any of the following acts by the
      insurer:
             1. Not attempting in good faith to settle claims when, under all
      the circumstances, it could and should have done so, had it acted fairly
      and honestly toward its insured and with due regard for her or his
      interests[.]

      Specifically, Perdido Sun claimed that Citizens (1) refused to pay the full

amount owed to Perdido Sun under the insurance policy; (2) refused to take part in

the required appraisal process and instead used that process in an attempt to

forestall litigation; (3) delayed payment of the appraisal award and improperly

attempted to condition payment of the award upon the execution of a universal

release; and (4) engaged in a pattern and practice of seeking to avoid or delay full

settlement of claims.

      Citizens moved to dismiss the complaint, citing its immunity from suit under

section 627.351(6)(s)1., Florida Statutes (2009), which provides:

            There shall be no liability on the part of, and no cause of action
      of any nature shall arise against, any assessable insurer or its agents or
      employees, the corporation or its agents or employees, members of the
      board of governors or their respective designees at a board meeting,
      corporation committee members, or the office or its representatives,
      for any action taken by them in the performance of their duties or
      responsibilities under this subsection. Such immunity does not apply
      to:

                                        -3-
            a. Any of the foregoing persons or entities for any willful tort;
            b. The corporation or its producing agents for breach of any
      contract or agreement pertaining to insurance coverage;
            c. The corporation with respect to issuance or payment of debt;
            d. Any assessable insurer with respect to any action to enforce
      an assessable insurer’s obligations to the corporation under this
      subsection; or
            e. The corporation in any pending or future action for breach of
      contract or for benefits under a policy issued by the corporation; in
      any such action, the corporation shall be liable to the policyholders
      and beneficiaries for attorney’s fees under s. 627.428.

(Emphasis added.)

      Perdido Sun relied on the statutory exception to immunity for “any willful

tort” in asserting that immunity did not apply. The trial court disagreed and

dismissed the complaint with prejudice, reasoning that a statutory bad faith action

under section 624.155 was not among the specifically listed exceptions to the

immunity provided in section 627.351(6)(s). On appeal, the First District reversed,

concluding that “Citizens’ immunity does not extend to the ‘willful tort’ of failing

to attempt in good faith to settle claims as provided by section 624.155.” Perdido

Sun, 129 So. 3d at 1213. The First District certified conflict with Garfinkel, 25 So.

3d 62, which had held to the contrary—that a cause of action for statutory first-

party bad faith did not constitute a “willful tort” for purposes of the statutory

exceptions from Citizens’ immunity. Perdido Sun, 129 So. 3d at 1213. The First

District also certified the question to be one of great public importance. Id.

                                     ANALYSIS


                                         -4-
      The issue in this case turns on a question of statutory construction—namely,

whether the Legislature intended Citizens to be liable for statutory first-party bad

faith claims. The answer to this question requires us to review the specific

exceptions that the Legislature provided to Citizens’ statutory immunity and to

examine whether liability on this ground is included within the statutory phrase

“willful tort.” Perdido Sun argues, and the First District agreed, that a statutory

bad faith cause of action constitutes a “willful tort” for purposes of the statutory

immunity. Citizens counters that a statutory bad faith cause of action is not a tort.

Both Perdido Sun and Citizens rely on statutory construction principles to support

their respective positions.

      As the issue presented involves a question of statutory construction, this

Court’s review is de novo. See Diamond Aircraft Indus., Inc. v. Horowitch, 107

So. 3d 362, 367 (Fla. 2013). In applying principles of statutory construction,

courts must “begin with the ‘actual language used in the statute.’ ” Raymond

James Fin. Servs., Inc. v. Phillips, 126 So. 3d 186, 190 (Fla. 2013) (quoting Borden

v. E.–European Ins. Co., 921 So. 2d 587, 595 (Fla. 2006)). A court, in construing a

statute, is required to “give effect to legislative intent, which is the polestar that

guides the court in statutory construction.” Id. (quoting Gomez v. Vill. of

Pinecrest, 41 So. 3d 180, 185 (Fla. 2010)).




                                           -5-
      In examining the relevant statutory provisions at issue, we find no support

that the Legislature intended for Citizens to be liable for a breach of the duty to act

in good faith by allowing its policyholders to bring a statutory first-party bad faith

cause of action. The clearest expression of legislative intent is found in the listed

exceptions to Citizens’ immunity. See § 627.351(6)(s)1., Fla. Stat. Although the

Legislature codified Citizens’ duty to handle claims in good faith, see

§ 627.351(6)(s)2., Fla. Stat., the Legislature never listed statutory first-party bad

faith claims as one of the exceptions to Citizens’ immunity. To the contrary, the

Legislature chose to immunize Citizens for “any action taken by [it] in the

performance of [its] duties or responsibilities under . . . subsection

[627.351(6)(s)],” which necessarily includes a breach of the duty of good faith.

       If the Legislature had intended to exempt first-party bad faith claims from

Citizens’ statutory immunity, listing this category within section 627.351(6)(s)1.

would have been a simple and explicit way to indicate this. Certainly, the

Legislature knew how to accomplish an exception to the immunity because it

created a specific exception to the immunity for attorney’s fees, as authorized by

section 627.428, Florida Statutes. See § 627.351(6)(s)1.e., Fla. Stat.

      As this Court has recognized, where the Legislature made one exception

clearly, if it had “intended to establish other exceptions it would have done so

clearly and unequivocally.” Dobbs v. Sea Isle Hotel, 56 So. 2d 341, 342 (Fla.


                                          -6-
1952). Accordingly, where the Legislature articulates clear exceptions to a statute,

“no other exceptions may be implied.” Garfinkel, 25 So. 3d at 65. As Garfinkel

observed, “because the Legislature identified five exceptions to its grant of

immunity, there is no reason to think that another grant would show up in a nearby

but separate paragraph, unless specifically identified as such.” Id. The Legislature

has not included statutory first-party bad faith claims among the limited exceptions

to Citizens’ immunity when it could have easily chosen to do so.

      Besides the failure to include a specific exception for statutory causes of

action under section 624.155(1)(b)1., we do not agree with the First District’s

conclusion that the statutory cause of action for first-party bad faith is a tort or

specifically a “willful tort”—a principle that becomes clear after considering the

history of first-party bad faith causes of action. Unlike common law causes of

action for third-party bad faith, first-party bad faith actions are purely a creature of

statute that did not previously exist at common law. As explained by the Fifth

District in Garfinkel:

             The reason why first-party bad faith claims are not considered
      to be willful torts is best explained by examining the history of this
      cause of action. A third-party bad faith action (that is, a claim against
      one’s own insurer for failing in good faith to settle a third-party’s
      claim, thus exposing the insured to liability in excess of the available
      insurance coverage), was recognized in Florida as part of the common
      law as early as 1938. The foundation for this claim is found in the
      fiduciary nature of the insurance carrier’s relationship with the
      insured. The carrier was required to act in good faith to negotiate a
      settlement for the benefit of its insured, and not to protect its own

                                          -7-
      interest alone. Opperman v. Nationwide Mut. Fire Ins. Co., 515 So.
      2d 263, 265 (Fla. 5th DCA 1987), review denied, 523 So. 2d 578 (Fla.
      1988). Because of the perceived absence of the fiduciary relationship,
      however, there was no first-party bad faith action by an insured
      against the insurer recognized at common law. See Allstate Indem.
      Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005); State Farm Mut. Auto. Ins.
      Co. v. Laforet, 658 So. 2d 55, 58-59 (Fla. 1995); Baxter v. Royal
      Indem. Co., 285 So. 2d 652 (Fla. 1st DCA 1973); cert. discharged,
      317 So. 2d 725 (Fla. 1975). Thus, unless the insured could allege an
      independent tort such as fraud, the only relief available on a first-party
      claim was a cause of action for breach of contract. Butchikas v.
      Travelers Indem. Co., 343 So. 2d 816 (Fla. 1976); Rubio v. State
      Farm Fire & Cas. Co., 662 So. 2d 956, 957 (Fla. 3d DCA 1995),
      review denied, 669 So. 2d 252 (Fla. 1996); Opperman; Allstate Ins.
      Co. v. Kelley, 481 So. 2d 989 (Fla. 5th DCA 1986).
             The Legislature addressed this issue in 1982 by the adoption of
      section 624.155, Florida Statutes. As our Supreme Court has
      indicated, “[t]hrough this statute, the Legislature created a first-party
      bad faith cause of action . . . .” Laforet, 658 So. 2d at 59.

Garfinkel, 25 So. 3d at 68. Thus, as the Fifth District succinctly stated, statutory

first-party bad faith causes of action “now exist in Florida not because they are

torts, but because they are a statutory cause of action. Accordingly, a first-party

bad faith claim cannot be wedged into the statutory exception for willful torts

because it is not a tort of any variety.” Id. at 68-69.

      Citizens also argues that subjecting it to statutory first-party bad faith claims

would reduce the funds available to pay insureds’ claims for property damage so

that further amounts that might be awarded would be borne by the taxpayers.

Citizens asserts that is “antithetical to its enabling statute, which provides that

Citizens have the maximum financial resources to pay its claims.” A competing


                                          -8-
argument made by Perdido Sun is that unless Citizens is liable for amounts in

excess of the policy limits, the statutory obligation to act in good faith would be

meaningless. However, legislative intent must be determined primarily from the

language of the statute and not from this Court’s view of the best policy. See, e.g.,

Rollins v. Pizzarelli, 761 So. 2d 294, 299 (Fla. 2000) (“An interpretation of a

statutory term cannot be based on this Court’s own view of the best policy.”); State

v. Ashley, 701 So. 2d 338, 343 (Fla. 1997) (“[T]he making of social policy is a

matter within the purview of the legislature—not this Court.”).

      In this case, Perdido Sun’s complaint does not allege that Citizens

committed a “willful tort.” As we have previously recognized, “where a plaintiff

claims a defendant engaged in egregious and outrageous actions, bad faith can be

elevated to a willful tort, an issue that could turn on the facts of the case.” Citizens

Prop. Ins. Corp. v. San Perdido Ass’n, 104 So. 3d 344, 355 n.7 (Fla. 2012).

Perdido Sun’s complaint is based solely on the statutorily created first-party bad

faith cause of action under section 624.155. No additional allegations of willful

misconduct outside of the statutory bad faith claim are alleged. Although the

complaint contains allegations that the conduct was “intentional, willful, wanton

and malicious or done in a reckless disregard for Perdido Sun’s rights,” these

allegations were made to preserve Perdido Sun’s right to add a count for punitive

damages and not to allege a separate willful tort. Because specific allegations of


                                          -9-
willful misconduct are not contained in the complaint, the trial court properly

dismissed the complaint.

                                    CONCLUSION

      Perdido Sun brought a first-party bad faith claim pursuant to section

624.155(1). That claim is a statutory cause of action and does not fall within the

willful tort exception to Citizens’ immunity under section 627.351(6)(s)1.

Therefore, we answer the certified question in the affirmative, quash the First

District’s decision in Perdido Sun, and approve the Fifth District’s reasoning in

Garfinkel on this issue. We remand this case to the First District with instructions

to reinstate the trial court’s order of dismissal.

      It is so ordered.

LABARGA, C.J., and QUINCE and PERRY, JJ., concur.
LEWIS, CANADY, and POLSTON, JJ., concur in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions

      First District - Case No. 1D13-1951

      (Escambia County)

Kara Berard Rockenbach of Methe & Rockenbach, P.A., West Palm Beach,
Florida; Raoul G. Cantero, III, David P. Draigh, and Ryan Andrew Ulloa of White
& Case LLP, Miami, Florida,

      for Petitioner

                                          - 10 -
Charles S. Liberis, Jr. and Thomas F. Condon of the Liberis Law Firm, P.A.,
Pensacola, Florida,

      for Respondent

Pamela Jo Bondi, Attorney General, Allen C. Winsor, Solicitor General, and
Rachel Erin Nordby, Deputy Solicitor General, Tallahassee, Florida,

      for Amicus Curiae State of Florida

Mark Lawrence Zientz of the Law Offices of Mark L. Zientz, P.A., Miami,
Florida,

      for Amicus Curiae Florida Workers’ Advocates




                                      - 11 -
