WARNER, J.
Petitioner, Safeco Insurance Company, challenges the trial court's order abating plaintiff's claim against it for bad faith refusal to settle the plaintiff's uninsured/underinsured motorist ("UM") claim, rather than dismissing the claim in favor of a separate suit. Petitioner contends that the abatement precludes it from removing the case to federal court. Although we have held, in a third party bad faith case, that an order which prevented removal of a case to federal court constituted irreparable harm and departed from the essential requirements of law, in this case we conclude that, even though petitioner may not be able to remove its case, the trial court did not depart from the essential requirements of law.
In 2011, Christine Beare sued third party tortfeasors as a result of an automobile accident. The parties agreed to a settlement in October 2012. Thereafter, Beare was granted leave to amend her complaint to add her insurance carrier, Safeco. She added claims for UM benefits under her policy and for bad faith refusal to settle her claim. Safeco was served in January 2013. It answered the UM claim and moved to dismiss the bad faith claim as premature. Instead, at the urging of Beare, the court abated the bad faith count.
In its petition, Safeco claims that it has been irreparably harmed by the denial of its motion to dismiss the bad faith claim. Because the claim was an amendment to the original negligence suit, which was filed more than one year prior to Safeco's joinder, Safeco claims that this prevents it from removing the claim to federal court. In the Southern District of Florida, the federal courts have taken that position. See, e.g., Potts v. Harvey, 2011 WL 4637132, at *1 (S.D.Fla. Oct. 6, 2011); Moultrop v. GEICO Gen. Ins. Co., 858 F.Supp.2d 1342, 1346-47 (S.D.Fla.2012); van Niekerk v. Allstate Ins. Co., 2013 WL 253693, at *2 (S.D.Fla. Jan. 23, 2013); Hoggins v. Mid-Continent Cas. Co., 2013 WL 394882, at *2-4 (S.D.Fla. Jan. 31,
In Williams v. Oken, 62 So.3d 1129 (Fla. 2011), the court reiterated the requirements to obtain certiorari relief:
Id. at 1132.
We have held several times that the loss of the right to remove a case to federal court constitutes a material irreparable injury. See Beazley Ins. Co. v. Banerjee, 123 So.3d 1184, 1185 (Fla. 4th DCA 2013); GEICO Gen. Ins. Co. v. Harvey, 109 So.3d 236, 238 (Fla. 4th DCA 2013); Sunrise Mills (MLP) Ltd. P'ship v. Adams, 688 So.2d 464, 465 (Fla. 4th DCA 1997). In nearly identical circumstances to those present in this case, the First District disagreed with Harvey and held that if the trial court improperly denied a motion to dismiss a bad faith claim, it could be remedied on appeal, thus precluding certiorari jurisdiction. See Safeco Ins. Co. of Illinois v. Rader, 132 So.3d 941, 946 (Fla. 1st DCA 2014). And the Fifth District has held that certiorari is not available to preserve a litigant's right to remove a case to federal court. Cont'l Baking Co. v. Vincent, 634 So.2d 242, 244 (Fla. 5th DCA 1994). For the purposes of this opinion, we follow Banerjee, Harvey, and Sunrise Mills and conclude that the inability to remove the action to federal court constitutes irreparable harm, thus establishing our jurisdiction to consider certiorari relief.
We deny relief, however, because Safeco has not shown that the trial court departed from the essential requirements of law. In State Farm Mutual Automobile Insurance Co. v. Tranchese, 49 So.3d 809, 810 (Fla. 4th DCA 2010), we held that where a first party bad faith action is
Safeco maintains, however, that the Florida Supreme Court's holding in Vest compels dismissal of the bad faith action, rather than abatement. Vest did state that where a bad faith claim is prematurely filed, it should be dismissed. 753 So.2d at 1276. However, in that case the trial court had granted summary judgment on the bad faith claim, and the court was commenting that a premature claim was not subject to summary judgment but rather should be dismissed as premature. Id. The issue was therefore the choice between summary judgment and dismissal, not between abatement and dismissal. Later, in Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121, 1130 (Fla.2005), where the court considered what discovery would be allowed in bad faith actions, the supreme court suggested the use of abatement as a tool where coverage and bad faith actions were filed together. Thus, it is not clear that Vest provides the only method of handling a premature bad faith claim.
Because the case law supports the trial court's abatement of the bad faith action in lieu of dismissal, we cannot conclude that the trial court departed from the essential requirements of law. Vest does not appear to foreclose abatement. If we are wrong in our interpretation of Vest, then Safeco can seek to invoke the discretionary jurisdiction of the supreme court to clarify the matter.
Petition denied.
STEVENSON and GROSS, JJ., concur.