        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

             SAFECO INSURANCE COMPANY OF ILLINOIS,
                           Petitioner,

                                      v.

                          CHRISTINE A. BEARE,
                              Respondent.

                              No. 4D13-3104

                           [September 17, 2014]

   Petition for writ of certiorari to the Circuit Court for the Nineteenth
Judicial Circuit, Indian River County; Cynthia L. Cox, Judge; L.T. Case
No. 312011CA001594XXXXXX.

  Mark S. Shapiro, James A. Bombulie and Ross E. Linzer of Akerman
Senterfitt, Miami, for petitioner.

  Philip M. Burlington and Adam J. Richardson of Burlington &
Rockenbach, P.A., West Palm Beach, and David M. Alpizar of Alpizar Law,
LLC, Palm Bay, for respondent.

WARNER, J.

   Petitioner, Safeco Insurance Company, challenges the trial court’s
order abating plaintiff’s claim against it for bad faith refusal to settle the
plaintiff’s uninsured/underinsured motorist (“UM”) claim, rather than
dismissing the claim in favor of a separate suit. Petitioner contends that
the abatement precludes it from removing the case to federal court.
Although we have held, in a third party bad faith case, that an order which
prevented removal of a case to federal court constituted irreparable harm
and departed from the essential requirements of law, in this case we
conclude that, even though petitioner may not be able to remove its case,
the trial court did not depart from the essential requirements of law.

   In 2011, Christine Beare sued third party tortfeasors as a result of an
automobile accident. The parties agreed to a settlement in October 2012.
Thereafter, Beare was granted leave to amend her complaint to add her
insurance carrier, Safeco. She added claims for UM benefits under her
policy and for bad faith refusal to settle her claim. Safeco was served in
January 2013. It answered the UM claim and moved to dismiss the bad
faith claim as premature. Instead, at the urging of Beare, the court abated
the bad faith count.

    In its petition, Safeco claims that it has been irreparably harmed by the
denial of its motion to dismiss the bad faith claim. Because the claim was
an amendment to the original negligence suit, which was filed more than
one year prior to Safeco’s joinder, Safeco claims that this prevents it from
removing the claim to federal court. In the Southern District of Florida,
the federal courts have taken that position. See, e.g., Potts v. Harvey,
2011 WL 4637132, at *1 (S.D. Fla. Oct. 6, 2011); Moultrop v. GEICO Gen.
Ins. Co., 858 F. Supp. 2d 1342, 1346-47 (S.D. Fla. 2012); Van Niekerk v.
Allstate Ins. Co., 2013 WL 253693, at *2 (S.D. Fla. Jan. 23, 2013);
Hoggins v. Mid-Continent Cas. Co., 2013 WL 394882, at *2-4 (S.D. Fla.
Jan. 31, 2013).1 Therefore, Safeco claims it will suffer irreparable injury
by being compelled to litigate its bad faith claim in state court and losing
its right of removal to federal court if the bad faith claim is not severed and
dismissed from this suit. It claims that the court departed from the
essential requirements of law because Vest v. Travelers Insurance Co., 753
So. 2d 1270, 1276 (Fla. 2000), holds that a first party bad faith claim filed
prior to determination of liability and damages under the contract between
the insurer and insured is not ripe and should be dismissed as premature.

   In Williams v. Oken, 62 So. 3d 1129 (Fla. 2011), the court reiterated the
requirements to obtain certiorari relief:

        Before a court may grant certiorari relief from the denial of a
      motion to dismiss, the petitioner must establish the following
      three elements: “ ‘(1) a departure from the essential
      requirements of the law, (2) resulting in material injury for the
      remainder of the case[,] (3) that cannot be corrected on
      postjudgment appeal.’ ” Reeves v. Fleetwood Homes of Fla.,
      Inc., 889 So. 2d 812, 822 (Fla. 2004) (quoting Bd. of Regents v.
      Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA 2002)). In other
      words, certiorari relief is available when a lower court has

 1 In the Middle District of Florida, however, some courts have allowed removal
 in these same circumstances. See, e.g., Lahey v. State Farm Mut. Auto. Ins.
 Co., 2007 WL 2029334, at *2 (M.D. Fla. July 11, 2007); Love v. Prop. & Cas.
 Ins. Co. of Hartford, 2010 WL 2836172, at *2-3 (M.D. Fla. July 16, 2010).
 There is no Eleventh Circuit opinion reconciling these differing views.



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      departed from the essential requirements of the law or when a
      lower court has acted in excess of its jurisdiction, and no
      appeal or direct method of reviewing the proceeding exists. See
      Haines, 658 So. 2d at 527. The last two elements are
      jurisdictional and must be analyzed before the court may even
      consider the first element. See id.; Parkway Bank v. Fort Myers
      Armature Works, Inc., 658 So. 2d 646, 648–49 (Fla. 2d DCA
      1995).

Id. at 1132.

    We have held several times that the loss of the right to remove a case to
federal court constitutes a material irreparable injury. See Beazley Ins. Co.
v. Banerjee, 123 So. 3d 1184, 1185 (Fla. 4th DCA 2013); GEICO Gen. Ins.
Co. v. Harvey, 109 So. 3d 236, 238 (Fla. 4th DCA 2013); Sunrise Mills (MLP)
Ltd. P’ship v. Adams, 688 So. 2d 464, 465 (Fla. 4th DCA 1997). In nearly
identical circumstances to those present in this case, the First District
disagreed with Harvey and held that if the trial court improperly denied a
motion to dismiss a bad faith claim, it could be remedied on appeal, thus
precluding certiorari jurisdiction. See Safeco Ins. Co. of Illinois v. Rader,
132 So. 3d 941, 946 (Fla. 1st DCA 2014). And the Fifth District has held
that certiorari is not available to preserve a litigant’s right to remove a case
to federal court. Cont’l Baking Co. v. Vincent, 634 So. 2d 242, 244 (Fla. 5th
DCA 1994). For the purposes of this opinion, we follow Bannerjee, Harvey,
and Sunrise Mills and conclude that the inability to remove the action to
federal court constitutes irreparable harm, thus establishing our
jurisdiction to consider certiorari relief.

    We deny relief, however, because Safeco has not shown that the trial
court departed from the essential requirements of law. In State Farm
Mutual Automobile Insurance Co. v. Tranchese, 49 So. 3d 809, 810 (Fla. 4th
DCA 2010), we held that where a first party bad faith action is joined with
a claim for UM benefits, the appropriate relief is to abate the bad faith
action until liability and damages under the policy have been established.
Harvey is in accord, as it distinguished Tranchese on the grounds that it
involved a first party bad faith claim, rather than a third party bad faith
claim. Harvey, 109 So. 3d at 239-40. We also allowed the trial court to
either dismiss or abate a bad faith action until the underlying breach of
contract action was determined in Landmark American Insurance Co. v.
Studio Imports, Ltd., 76 So. 3d 963, 964 (Fla. 4th DCA 2011).

   Safeco maintains, however, that the Florida Supreme Court’s holding in
Vest compels dismissal of the bad faith action, rather than abatement. Vest
did state that where a bad faith claim is prematurely filed, it should be

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dismissed. 753 So. 2d at 1276. However, in that case the trial court had
granted summary judgment on the bad faith claim, and the court was
commenting that a premature claim was not subject to summary judgment
but rather should be dismissed as premature. Id. The issue was therefore
the choice between summary judgment and dismissal, not between
abatement and dismissal. Later, in Allstate Indemnity Co. v. Ruiz, 899 So.
2d 1121, 1130 (Fla. 2005), where the court considered what discovery
would be allowed in bad faith actions, the supreme court suggested the use
of abatement as a tool where coverage and bad faith actions were filed
together. Thus, it is not clear that Vest provides the only method of
handling a premature bad faith claim.

    Because the case law supports the trial court’s abatement of the bad
faith action in lieu of dismissal, we cannot conclude that the trial court
departed from the essential requirements of law. Vest does not appear to
foreclose abatement. If we are wrong in our interpretation of Vest, then
Safeco can seek to invoke the discretionary jurisdiction of the supreme
court to clarify the matter.

   Petition denied.

STEVENSON and GROSS, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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