       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

          THE FIRST LIBERTY INSURANCE CORPORATION,
                       a foreign corporation,
                             Petitioner,

                                     v.

             JOHANNA O’NEILL and WILLIE J. ANDERSON,
                          Respondents.

                              No. 4D14-2895

                            [January 13, 2016]

   Petition for writ of certiorari to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Donald W. Hafele, Judge; L.T. Case
No. 502013CA004444MB.

   Mark S. Shapiro and Antonio D. Morin of Akerman LLP, Miami, for
petitioner.

   Brett C. Powell of The Powell Law Firm, P.A., Palmetto Bay, for
respondent Johanna O’Neill.

GERBER, J.

    The insurer appeals from: (1) the circuit court’s partial final judgment
for the insured on her uninsured motorist claim after the insurer tendered
its policy limits; and (2) the court’s simultaneous order granting the
insured’s motion to amend the complaint to add a first-party bad faith
claim. We treat the appeal as a petition for a writ of certiorari and deny
the petition.

   We deny the petition because the circuit court’s decisions – at the time
of its decisions – did not constitute a departure from the essential
requirements of the law. See Custer Med. Ctr. v. United Auto. Ins. Co., 62
So. 3d 1086, 1092 (Fla. 2010) (“The departure from the essential
requirements of the law necessary for granting a writ of certiorari is
something more than a simple legal error.”).

   At the time of the circuit court’s decisions, we had not addressed the
issue of whether an insured, after obtaining a favorable result on its
benefits claim, may amend the complaint to add a first-party bad faith
claim instead of filing a new action on the bad faith claim.

    Instead, the circuit court was faced with a split of authority from our
sister courts on that issue. Compare Safeco Ins. Co. of Ill. v. Rader, 132
So. 3d 941, 947-48 (Fla. 1st DCA 2014) (denying insurer’s petition for writ
of certiorari as to the circuit court’s order denying the insurer’s motion to
enter a final judgment in accordance with the insurer’s confession of
judgment on the insured’s underinsured motorist claim, and also granting
the insured’s motion to add a bad faith claim), with Safeco Ins. Co. of Ill. v.
Fridman, 117 So. 3d 16, 17-18 (Fla. 5th DCA 2013) (trial court erred in
denying insurer’s motion to enter a final judgment in accordance with the
insurer’s confession of judgment, and also reserving jurisdiction on the
insured’s motion to amend his complaint to add a bad faith claim; instead,
the trial court should have entered the confessed judgment in the
insured’s favor, and the insured should have pursued a subsequent bad
faith action against the insurer), rev. granted, 145 So. 2d 823 (Fla. 2014).

    Given the lack of binding authority from this court on the underlying
issue, and given the split of authority between our sister courts on the
underlying issue, we cannot say that the circuit court’s apparent decision
to follow the First District’s authority was a departure from the essential
requirements of the law at the time of its decision. Thus, because of that
procedural posture, we are compelled to deny the petition for writ of
certiorari and not decide the underlying issue until a final appealable
judgment is entered.

   Petition denied.

GROSS and KLINGENSMITH, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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