PROGRESSIVE AMERICAN INSURANCE COMPANY v. DR. CAR GLASS, LLC, etc.

Third District Court of Appeal
State of Florida

Opinion filed September 15, 2021.
Not final until disposition of timely filed motion for rehearing.

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No. 3D21-0558
Lower Tribunal Nos. 19-14630 SP, 20-186 AP
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Progressive American Insurance Company,
Petitioner,

vs.

Dr. Car Glass, LLC, etc.,
Respondent.

On Petition for Writ of Certiorari from the County Court for Miami-
Dade County, Michaelle Gonzalez-Paulson, Judge.

Cole, Scott & Kissane, P.A. and Alexandra Valdes and Kurt T.
Koehler, for petitioner.

Chad Barr Law, and Chad A. Barr and Virginia E. Davis Horton
(Altamonte Springs), for respondent.

Before HENDON, LOBREE and BOKOR, JJ.

PER CURIAM.
 Petitioner Progressive American Insurance Company seeks certiorari

review of a trial court order denying a motion to dismiss or to compel

appraisal.

The trial court ordinarily has discretion to determine the order in

which it disposes of the declaratory judgment counts and the breach of

contract count. Barbato v. State Farm Fla. Ins. Co., 319 So. 3d 96, 97 (Fla.

3d DCA 2021) (“Neither can it be said that, in this case, no reasonable

judge would have required appraisal to take place before a coverage

determination was made.”). In this case, the trial court stayed the breach

count and deferred ruling on the motion to compel appraisal until after

resolution of the declaratory judgment counts. As this court explained:

[W]here declaratory counts challeng[e] the enforceability of an
appraisal clause exist, courts must enjoy no less power to
decide whether to address such arguments in an adjudication
of the merits of such counts, or in response to a motion to
compel appraisal, before the appraisal can be enforced, as well
as to decide whether an evidentiary hearing is warranted.

[…]

Because these are challenges targeting the enforceability of the
appraisal and other policy provisions themselves, the trial court
could not have granted the motion to compel appraisal as to the
breach of contract claim without improperly and prematurely
adjudicating these issues with regard to the declaratory
judgment claims.

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People’s Tr. Ins. Co. v. Marzouka, 320 So. 3d 945, 948 (Fla. 3d DCA 2021)

(citations omitted). Accordingly, there was no departure from the essential

requirements of the law. Additionally, Progressive fails to show irreparable

harm where, as here, the trial court stayed the breach of contract claim.

Petition dismissed.

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