Citizens Property Insurance Corp. v. Trapeo
136 So. 3d 670
Fla. Dist. Ct. App.2014Background
- Citizens insured Trapeo (policy Dec 2009–Dec 2010); Trapeo sued Citizens in March 2012 over alleged 2010 sinkhole damage and disagreement over remediation.
- After discovery, Citizens filed a request for neutral evaluation with the Florida Department of Financial Services under section 627.7074 and filed a “Notice of Automatic Stay” in circuit court.
- Trapeo objected, arguing Citizens waived the right to neutral evaluation by participating in litigation (answer, affirmative defenses, discovery for ~10 months) and moved to bar retroactive application of the statute.
- The trial court ruled that statutory rights (including neutral evaluation) can be waived by litigation participation and sustained Trapeo’s objection, denying the stay.
- Citizens sought appellate relief; the district court treated the petition as certiorari in part and mandamus in part, reviewing whether the stay is mandatory and whether the trial court exceeded its authority by finding waiver.
Issues
| Issue | Plaintiff's Argument (Trapeo) | Defendant's Argument (Citizens) | Held |
|---|---|---|---|
| Whether neutral evaluation may be waived by litigation participation | Citizens waived neutral evaluation by litigating, asserting defenses, and conducting discovery | Neutral evaluation is a statutory right that cannot be waived by participation in court | Trial court erred; district court quashed order to the extent it prohibited neutral evaluation and held waiver determination exceeded circuit court authority |
| Whether the stay provision of § 627.7074 is mandatory/automatic upon request | N/A (Trapeo objected to stay) | Filing a request/notice with the Dept. triggers an automatic, ministerial stay of related court proceedings | Mandamus granted: the stay is mandatory and automatic; circuit court must stay proceedings pending neutral evaluation |
| Which version of § 627.7074 governs the stay (pre- or post-2011 amendment) | Argued 2009 statute should apply because policy issued in 2009 | 2011 amended, procedural stay provision applies to suits filed after amendment; therefore amended stay applies | The amended (2011/2012) stay provision is procedural and applies to this pending litigation; statute’s “regardless of when noticed” language applies |
| Whether the circuit court had authority to decide waiver or prohibit neutral evaluation | Trapeo: circuit court properly determined waiver | Citizens: Department of Financial Services is the statutorily designated authority for neutral evaluation matters; circuit court lacks power to bar neutral evaluation | Circuit court acted in excess of jurisdiction by purporting to bar neutral evaluation; Department has authority over neutral evaluation requests/wavier issues |
Key Cases Cited
- Menendez v. Progressive Express Ins. Co., 35 So.3d 873 (Fla. 2010) (substantive statute-at-contract-formation rule)
- Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352 (Fla. 1994) (procedural statutes apply to pending cases)
- State Farm Fla. Ins. Co. v. Buitrago, 100 So.3d 85 (Fla. 2d DCA 2012) (section 627.7074 provides substantive right to neutral evaluation)
- Morejon v. American Security Ins. Co., 829 F. Supp. 2d 1258 (M.D. Fla. 2011) (federal courts treating neutral-evaluation stay as administrative/automatic)
- Cruz v. Cooperativa De Seguros Multiples De Puerto Rico, Inc., 76 So.3d 394 (Fla. 2d DCA 2011) (discussing mandatory/automatic nature and purpose of the neutral-evaluation stay)
- Williams v. Oken, 62 So.3d 1129 (Fla. 2011) (certiorari available when a statutorily mandated process is denied)