Recently, in Citizens Property Insurance Corp. v. Perdido Sun Condo. Ass’n, Inc., 40 Fla. L. Weekly S265 (Fla. May 14, 2015), the Florida Supreme Court held that Citizens, as a state-created insurer, was immune from liability for a statutory first-party bad faith claim brought pursuant to §624.155(1)(b), Fla. Stat.

The Florida Supreme Court’s decision resolved a conflict between the First District and the Fifth District on this issue. The First District, in Perdido Sun Condominium Ass’n v. Citizens Property Insurance Corp., 129 So. 3d 1210 (Fla. 1st DCA 2014), the underlying decision on review, had held that Citizens could be subject to a first-party bad faith claim. The First District reasoned that one of the limited exceptions to Citizens’ statutory immunity, contained in §627.351(6)(s)1.a., Fla. Stat., for “any willful tort,” applied to allow such an action to stand.

However, in an earlier decision, Citizens Property Insurance Corp. v. Garfinkel, 25 So. 3d 62 (Fla. 5th DCA 2009), the Fifth District held that, on the contrary, the “willful tort” exception to Citizens’ immunity in §627.351(6)(s)1.a., Fla. Stat., was inapplicable, and, thus, that Citizens could not be subject to a statutory first party bad faith claim. The Fifth District reasoned, for example, that statutory first-party bad faith actions “now exist in Florida not because they are torts, but because they are a statutory cause of action. Accordingly, a first party bad faith claim cannot be wedged into the statutory exception for willful torts because it is not a tort of any variety.” Id. at 68-69.

The Florida Supreme Court, persuaded by the Fifth District’s reasoning, approved the Fifth District’s decision in Garfinkel on this issue and quashed the First District’s decision in Perdido Sun. Accordingly, the Florida Supreme Court held that the trial court in Perdido Sun had properly dismissed Plaintiff’s complaint against Citizens, which only contained a statutory bad faith claim under §624.155, Fla. Stat., for which Citizens was immune, and which did not allege a separate willful tort.