On February 22, 2017, in Hernandez v. Florida Peninsula Insruance Company, No. 3D16-415, the Florida Third DCA dismissed a plaintiff’s petition for a writ of certiorari seeking to quash the trial court’s order abating their declaratory judgment and breach of contract claims filed against their property insurer. The property insurer maintained that it had timely exercised its contractual option to repair the damaged property to its pre-loss condition and that any legal action should be abated until they had an opportunity to perform the repairs.
The Third DCA held that to obtain a writ of certiorari, the petitioner must show (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal. Bd. of Regents v. Snyder, 826 So. 2d 382, 387 (Fla. 2d DCA 2002). The Court noted that the second and third elements are “sometimes referred to as irreparable harm,” Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712, 721 (Fla. 2012), and “[t]he establishment of irreparable harm is a condition precedent to invoking certiorari jurisdiction.” Stockinger v. Zeilberger, 152 So. 3d 71, 73 (Fla. 3d DCA 2014). Therefore, if the petitioner fails to make a prima facie showing of irreparable harm, the reviewing court must dismiss the petition as it lacks jurisdiction. See Bared & Co., Inc. v. McGuire, 670 So. 2d 153 (Fla. 4th DCA 1996) (“If petitioner has failed to make a prima facie showing of irreparable harm, [appellate court] lacks jurisdiction and will enter an order dismissing the petition [for writ of certiorari].”). Citing an almost factually identical case, Fernandez-Andrew v. Florida Peninsula Insurance Co., Case No. 3D16- 331 (Fla. 3d DCA Jan. 25, 2017), the Third DCA ruled that a showing of irreparable harm had not been made because after the repairs are made, the plaintiff can seek to lift the abatement to dispute the scope of repairs or the failure to return the property to its pre-loss condition.