State Farm Florida Insurance Company v. Buitrago, ___ So. 3d ___, 37 Fla. L. Weekly D1575 (Fla. 2d DCA June 29, 2012)
The appellate court, on petition for certiorari, quashed an order of the trial court ruling unconstitutional Section 627.7074, Florida Statutes, providing for neutral evaluation of sinkhole claims. Review by certiorari was proper because the statute was designed to reduce or eliminate the cost of unnecessary litigation, and this objective would be thwarted if appellate review was postponed until final judgment was entered. The court “[had] already held that the stay provision of the statute ‘is sufficiently intertwined with substantive provisions so that [the requirement of a stay once a neutral evaluation is requested] is not an unconstitutional violation of separation of powers.’” The court relied upon the decision of a federal district court for the proposition that the statute is “substantive in nature rather than procedural because the statute would not impact a plaintiff’s method of proceeding with litigation ‘once the condition precedent of neutral evaluation is met.’” In addition, “the Florida Supreme Court has recognized that the Legislature can statutorily mandate parties to participate in alternative dispute resolution and that findings from such a proceeding can be admissible at trial.” Although the neutral evaluator’s written recommendation is admissible in subsequent litigation, the opinion is not binding on the trial court, the trial court is not required ”to place greater weight on the recommendation than on any other evidence,” and the rules of evidence still apply. “For example, the circuit court must still determine preliminary questions concerning the admissibility of the recommendation pursuant to section 90.105, and the court may consider possible exclusion on the grounds of prejudice or confusion pursuant to section 90.403.” The trial court departed from the essential requirements of law by ruling that the statute was unconstitutional.