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Florida First DCA dismisses interlocutory appeal of trial court order denying defendant's summary judgment motion based on sovereign immunity

On February 23, 2018, in Florida Highway Patrol v. Jackson, No, 1D16-3940, dismissed the interlocutory appeal of a trial court order denying the defendant FHP’s summary judgment motion based on sovereign immunity in a lawsuit involving FHP’s alleged negligence in reopening I-75 after a series of accidents and a related vehicle fire. The trial court denied FHP’s summary judgment motion on the ground that disputed issues of material fact existed, including, but not limited to, the extent and adequacy of FHP’s continued monitoring of the roadway. FHP appealed, and its appeal was procedurally treated by the First DCA as an interlocutory appeal rather than a petition for writ of certiorari because of the Florida Supreme Court’s holding in Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344, 355 (Fla. 2012), that district courts do not have jurisdiction to entertain petitions for certiorari based on a public entity’s claim that it is entitled to immunity based on the particular facts of the lawsuit brought against it. Instead, the appeal was treated as an interlocutory appeal, which since the 2014 amendment of Rule 9.130 of the Florida Rules of Appellate Procedure allow appeals of non-final orders determining that “as a matter of law, a party is not entitled to” immunity under section 768.28(9), Florida Statutes, or to sovereign immunity. However, the First DCA concluded in this case that the trial court had not determined as a matter of law that FHP was not entitled to statutory immunity but had instead suggested that certain factual issues relating to FHP’s sovereign immunity claim were disputed. While the First DCA expressed skepticism about the trial court’s conclusion, the Court considered itself constrained by the trial court’s determination and a plain reading of Fla. R. App. P. 9.130. However, the Court certified as a question of great public importance whether Rule 9.130 permits an appeal of a non-final order denying immunity if the record shows that the defendant is entitled to immunity as a matter of law but the trial court did not explicitly preclude it as a defense.