Third District Court of Appeal
State of Florida
Opinion filed March 3, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1044
Lower Tribunal No. 18-42153
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Geico Casualty Company, et al.,
Petitioners,
vs.
MSP Recovery Claims, et al.,
Respondents.
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Veronica A. Diaz, Judge.
A Case of Original Jurisdiction—Prohibition.
Cole, Scott & Kissane, P.A., and Thomas L. Hunker, Selina Patel,
Peter D. Weinstein and Michael A. Rosenberg (Fort Lauderdale), for
petitioners.
MSP Recovery Law Firm, and John H. Ruiz, Michael O. Mena, Gino
Moreno and Andre Vazquez; Armas Bertran Zincone, and J. Alfredo Armas,
Eduardo E. Bertran and Francesco A. Zincone, III, for respondents.
Coffey Burlington, and Scott A. Hiaasen; Wiggin & Dana LLP, and
Michael Menapace (Hartford, CT), for American Property Casualty
Insurance Association and the Personal Insurance Federation of Florida, as
amici curiae.
Squire Patton Boggs (US) LLP, and Andrew R. Kruppa and Amanda
E. Preston; Reed Smith LLP, and Edward M. Mullins, Lisa M. Baird and
Christina D. Olivos; King & Spalding LLP, and Val Leppert (Atlanta, GA), for
Ethicon, Inc., American Medical Systems, Inc., and Coloplast Corp., as amici
curiae.
Before SCALES, LINDSEY and HENDON, JJ.
SCALES, J.
After the trial court entered its June 24, 2020 non-final order denying
petitioners, defendants below, GEICO Casualty Company, GEICO General
Insurance Company and GEICO Indemnity Company’s (collectively,
“GEICO”) motions to dismiss respondents’ second amended complaint and
for a protective order, GEICO filed the instant petition in this Court seeking
writs of both prohibition and certiorari. We deny the petition for writ of
prohibition because the circuit court has subject matter jurisdiction over the
claims presented in respondents’ second amended complaint, and we
dismiss the petition for writ of certiorari because GEICO has not established
the requisite irreparable harm to invoke this Court’s certiorari jurisdiction.
A. Prohibition
First, GEICO seeks a writ prohibiting the trial court from exercising
jurisdiction over the declaratory relief claim asserted in count I of
respondents MSP Recovery Claims, MSPA Claims 1, LLC, and Series PMPI,
2
a series of MAO-MSO Recovery II, LLC’s (collectively, “MSP”) second
amended complaint. In this count, MSP seeks a declaration that it is entitled
to recover from GEICO payments allegedly made by MSP’s assignors that
should have been made by GEICO, the PIP insurer for the assignors’
insureds. GEICO argues that, because each claim is necessarily limited to
no more than $10,000, the circuit court’s jurisdictional threshold 1 is not met
and, therefore, the circuit court lacks subject matter jurisdiction over MSP’s
declaratory relief claim. Even if GEICO’s jurisdictional threshold argument
is correct – an issue that we need not and do not reach – it is not dispositive
here because GEICO does not dispute that the circuit court has subject
matter jurisdiction over count II of MSP’s second amended complaint, a pure
bill of discovery. See Edgar v. Econ. Opportunity Legal Servs. Program, Inc.,
230 So. 2d 487, 488 (Fla. 3d DCA 1970) (“If the amount in controversy in
one count of a complaint is sufficient to invoke the jurisdiction of the circuit
court, that court may not transfer to the civil court of record another count
involving an amount insufficient in itself to invoke the jurisdiction of the circuit
court.”); Milhet Caterers, Inc. v. N. W. Meat, Inc., 185 So. 2d 196, 197 (Fla.
1
See § 86.011, Fla. Stat. (2018) (“The circuit and county courts have
jurisdiction within their respective jurisdictional amounts to declare rights,
status, and other equitable or legal relations whether or not further relief is
or could be claimed.”) (Emphasis added).
3
3d DCA 1966) (“We hold that because one of the demands was sufficient in
amount to invoke the jurisdiction of the circuit court, that court had jurisdiction
to entertain and determine all three demands.”). We, therefore, deny
GEICO’s petition for writ of prohibition.
B. Certiorari
Next, GEICO seeks certiorari review of that portion of the trial court’s
June 24, 2020 non-final order denying GEICO’s motion for a protective order
directed at the information sought by MSP in count II of MSP’s second
amended complaint, a pure bill of discovery. 2 We dismiss the writ because
GEICO “cannot demonstrate the requisite irreparable harm that would vest
this Court with jurisdiction to determine whether there has been a departure
from the essential requirements of the law.” Am. Med. Sys., LLC v. MSP
Recovery Claims, Series LLC, 290 So. 3d 548, 549-50 (Fla. 3d DCA 2019).
As this Court recognized in American Medical Systems, where the trial court
denies the petitioner’s motion to dismiss the underlying claim for a pure bill
of discovery, certiorari review is appropriate only when the trial court also
“direct[s] the petitioner to provide the very discovery sought” by the pleading.
2
GEICO does not challenge that portion of the trial court’s June 24, 2020
non-final order denying GEICO’s motion to dismiss count II for a pure bill of
discovery.
4
Id. at 550. Here, GEICO did not direct its motion for a protective order at any
outstanding discovery request propounded by MSP. Rather, GEICO
directed its motion toward the entirety of the information sought in count II of
MSP’s complaint (a pure bill of discovery action). Under this particular
circumstance, we view the trial court’s denial of GEICO’s motion for a
protective order as we viewed the order denying the dismissal motion in
American Medical Systems. Neither order directed the movant to respond
to any discovery request or to produce discovery, nor was either order akin
to a final judgment compelling discovery. Indeed, GEICO concedes that no
discovery request is pending below, arguing that the next step is for GEICO
to answer the second amended complaint. Under the particular procedural
background presented here, GEICO, at this stage of the litigation, has not
established the requisite irreparable harm stemming from the trial court’s
order for us to exercise certiorari jurisdiction. We are, therefore, compelled
to dismiss, for lack of jurisdiction, GEICO’s petition for writ of certiorari
directed toward that portion of the trial court’s order denying GEICO’s motion
for a protective order. 3
3
We thank amici curiae American Property Casualty Insurance Association,
Personal Insurance Federation of Florida, Ethicon, Inc., American Medical
Systems, Inc., and Coloplast Corporation for their amicus briefs in this
matter. Given our dismissal of GEICO’s certiorari petition, however, we lack
the jurisdiction to decide the issue argued by amici, i.e., whether the trial
5
Petition for writ of prohibition denied; petition for writ of certiorari
dismissed.
court departed from the essential requirements of the law by denying
GEICO’s motion for protective order. Am. Med. Sys., LLC, 290 So. 3d at
549-50.
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