Citizens Property Insurance Corporation (“Citizens”) seeks certiorari review of the trial court’s order denying it a stay pending neutral evaluation of the sinkhole claim that forms the basis for the underlying lawsuit. Citizens argues that the statute governing neutral evaluation mandates a stay of court proceedings and that the statutory right to neutral evaluation cannot be waived by participating in litigation. Based on the nature of the order on review and the relief requested, we treat Citizens’ petition as one for writ of certiorari, in part, and writ of mandamus, in part. The petition is granted.
I. Background
Citizens issued an insurance policy to Gary Trapeo in 2009. The policy was effective from December 2009 through December 2010. As the result of 2010 sinkhole damage to the property and a dispute between Citizens’ retained engineer and Mr. Trapeo’s retained engineer as to the appropriate remedial action, Mr. Trapeo filed a lawsuit against Citizens in March 2012. In December 2012, after engaging in discovery, Citizens filed a request for neutral evaluation with the Department of Financial Services (“Department”) pursuant to section 627.7074(4), Florida Statutes (2012). Section 627.7074 is titled “Alternative procedure for resolution of disputed sinkhole insurance claims.” The statute defines and establishes the right to neutral
Citizens also filed a “Notice of Automatic Stay” with the trial court, advising the court that it had filed its request for neutral evaluation with the Department and that section 627.7074 mandated a stay of the court proceedings “pending completion of the neutral evaluation and for 5 days after the filing of the neutral evaluator’s report with the court.” See § 627.7074(10).
In response, Mr. Trapeo filed a “Response and Objection to Defendant’s Notice of Stay of Litigation Pending Completion of Neutral Evaluation and Memorandum of Law.” Mr. Trapeo alleged that Citizens “waived its right to demand participation in [the Department’s] neutral evaluation program based upon its denials contained within its Answer, its assertion of Affirmative Defenses and its participation in this litigation for approximately ten (10) months.” In the memorandum of law, Mr. Trapeo argues that “Citizens failed to protect and safeguard its contractual right to neutral evaluation” and that “it has waived such right to participate in such process.”
In addition to the response, Mr. Trapeo filed a “Motion to Prevent the Retroactive Application of Florida Statutes 627.706 through 627.7074” and a motion to determine the constitutionality of section 627.7074. Neither of these motions is included in the records provided to this court but both are discussed in the transcript of the hearing on the objection to notice of stay. Only the former is relevant to our review.
At the hearing on the stay issue, Mr. Trapeo argued that Citizens waived its right to neutral evaluation based upon its participation in the circuit court litigation. Mr. Trapeo acknowledged that neutral evaluation is not only a contractual process but also statutory and that Citizens’ request was made pursuant to statute. He nonetheless argued that participation in neutral evaluation is a right that can be waived by litigating a case in court. Citizens countered with the argument that neutral evaluation is a statutory right which cannot be waived. It argued that neutral evaluation is unlike arbitration in that it is not an “opt out” of litigation. Citizens’ counsel also stated that he objected to his required presence at the hearing because the case should have been automatically stayed. Finally, Citizens argued that Mr. Trapeo’s analogizing waiver of neutral evaluation to a defendant waiving his right to jury trial was inapplicable because a criminal defendant must knowingly do so and in this case Citizens did not knowingly waive any right.
At the close of the hearing, the trial court specifically ruled that “like contractual rights, constitutional rights or anything else, [statutory rights] can be waived. And, in this case, by participating in discovery pursuant to the litigation [the right to neutral evaluation] was, in fact, waived.” The court “sustained the objection to neutral evaluation.” The written order provides that Mr. Trapeo’s objection is sustained “as [Citizens] waived its right to neutral evaluation when it participated in litigation” and that “the right to neutral evaluation, like any statutory or contractual right, can be waived and that waiver did occur in the instant action.”
II. Statute
Mr. Trapeo’s arguments and the court’s ruling confuse the central issue. First, Mr. Trapeo’s objection was to the stay but his argument centered on Citi
Section 627.7074 was enacted in 2006 and substantially amended in 2011. The relevant amendment for our purposes was to the stay provision of the statute. Previously, section 627.7074 provided: “Any court proceeding related to the subject matter of the neutral evaluation shall be stayed pending completion of the neutral evaluation.” § 627.7074(11), Fla. Stat. (2006); see ch. 2006-12, § 29, Laws of Fla. (2006). Effective May 17, 2011, the stay provision was renumbered to section 627.7074(10) and substantively provided: “Regardless of when noticed, any court proceeding related to the subject matter of the neutral evaluation shall be stayed pending completion of the neutral evaluation and for 5 days after the filing of the neutral evaluator’s report with the court.” § 627.7074(10) (emphasis added); see ch. 2011-39, § 27, Laws of Fla. (2011).
Mr. Trapeo argues that the 2009 version of section 627.7074 is applicable in determining whether waiver occurred because Citizens issued his insurance policy in 2009. He also contends that Citizens was required to request neutral evaluation “at the beginning of the case” and that its failure to do so amounted to waiver. Citizens contends that the 2012 amended version containing the phrase “regardless of when noticed” is applicable.
“ ‘[T]he statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ ” Menendez v. Progressive Express Ins. Co., Inc.,
Section 627.7074 contains both procedural and substantive aspects. The right to neutral evaluation is clearly substantive. State Farm Fla. Ins. Co. v. Buitrago,
Staying litigation is a means to enforce neutral evaluation and “serve the legislative purpose underlying the statutory requirement of neutral evaluation.” Morejon,
III. Certiorari
In reviewing an interlocutory order in a certiorari proceeding, this court must first determine whether the lower court’s ruling causes “material injury for the remainder of the trial” which “cannot be corrected on postjudgment appeal,” giving this court certiorari jurisdiction. Parkway Bank v. Fort Myers Armature Works, Inc.,
A. Jurisdiction
The majority of Citizens’ petition for writ of certiorari addresses the court’s failure to recognize the mandatory nature of the statute’s stay provision.
To the extent that the trial court’s order in this case attempts to prohibit neutral evaluation through its finding that Citizens waived its right to the process, the order meets the jurisdictional prongs for certiorari review. See Buitrago,
B. Departure from the law
While “certiorari jurisdiction cannot be used to create new law where the decision below recognizes the correct general law and applies the correct law to a new set of facts to which it has not been previously applied[,] ... [t]his does not mean ... that clearly established law consists only of prior judicial precedent.” Nader,
[the supreme court has] held that “ ‘clearly established’ law can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law.” Accordingly, a district court may grant a writ of certiorari after determining that the decision is in conflict with the relevant statute, so long as the legal error is also “sufficiently egregious or fundamental to fall within the limited scope” of certiorari jurisdiction.
Id. (quoting Allstate Ins. Co. v. Kaklamanos,
Citizens correctly argues that neutral evaluation, once requested, is mandatory. The trial court’s determination that neutral evaluation was waived conflicts with the express language of the statute. “Neutral evaluation is available to either party,” “supersedes the alternative dispute resolution process under s. 627.7015,” and is “mandatory if requested by either party.” § 627.7074(2), (3), (4). The statute’s language is compulsory; it repeatedly and almost exclusively directs that acts “shall” occur. There is no waiver provision and no timeframe for requesting neutral evaluation.
There has also been a departure from the essential requirements of the law in that the circuit court acted in excess of its jurisdiction. The circuit court does not have authority over the neutral evaluation process. The Department does. Chapter 627 is part of Florida’s Insurance Code. § 624.01, Fla. Stat. (2009). And as used in the code, “department” means the Department of Financial Services. § 624.05(1). Section 624.307 provides that the Department “shall enforce the provisions of this code and shall execute the duties imposed upon” it and “shall have the powers and authority expressly conferred upon it by, or reasonably implied from, the provisions of this code.” § 627.307(1), (2). It is clear that the legislature intended that the procedure for the neutral evaluation of sinkhole claims be administered through the Department. See State Farm Fla. Ins. Co. v. Colella,
The right to request neutral evaluation through the Department stems from section 627.7074(4), which has remained unchanged since 2006. Section 627.7074(4) provides that neutral evaluation is mandatory if requested by either party. Whether a party can or has waived neutral evaluation is a determination within the Department’s authority and power, as reasonably implied from the statute’s express language. As a result, the circuit court is not in a position to determine whether neutral evaluation can or has been waived. This is true despite the fact that nothing in the applicable statute addresses waiver. Cf. Asbury Arms Dev. Corp. v. Fla. Dep’t of Bus. Regulation,
IV. Mandamus
We convert that portion of the certiorari petition addressing the trial court’s denial of a stay to a petition for
Mandamus relief is warranted. The language of the statute is mandatory, requiring that the court proceedings “shall be stayed pending completion of the neutral evaluation.” § 627.7074(10); see Fla. Caucus of Black State Legislators, Inc. v. Crosby,
The notice of stay in this case was all that was necessary to effectuate the stay. Although not the issue presented to this court in Cruz, we consistently referred to the stay provision as “mandatory” and “automatic.” See
The statute also expressly states that “[n]eutral evaluation supersedes the alternative dispute resolution process under s. 627.7015.” § 627.7074(3). Section 627.7015 discusses its “nonadversarial alternative dispute resolution procedure” as a substi
V. Conclusion
Citizens’ petition for writ of certiorari is granted in part; the trial court’s order is quashed to the extent that it prohibits neutral evaluation pursuant to section 627.7074. The petition is converted, in part, to a petition for writ of mandamus and is granted. The trial court is directed to stay the circuit court proceedings pursuant to section 627.7074.
Petition granted; order quashed in part; remanded with directions.
Notes
. Although Citizens does not raise the issue, the court clearly departed from the essential requirements of the law by failing to consider the factors necessary to determine waiver of a right. To prove waiver, Mr. Trapeo was required to establish "the existence at the time of the waiver of a right, privilege, or advantage; the actual or constructive knowledge thereof; and an intention to relinquish that right, privilege, or advantage." See Winans v. Weber,
. We recognize the trial court’s concern that a notice of stay of litigation pending neutral evaluation could be filed on the eve of trial, thereby temporarily halting litigation at an inopportune time. However, the current language of the statute is clear.