Bullington Insurance Group, LLC v. Gordon, Ascendant Commerical Insurance, Inc.

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
BULLINGTON INSURANCE GROUP, LLC,
Petitioner,
v.
EARL JOSEPH GORDON and
ASCENDANT COMMERCIAL INSURANCE, INC.,
Respondents.
No. 2D2025-0948
January 23, 2026
Petition for Writ of Certiorari to the Circuit Court for Pasco County;
Kemba Johnson Lewis, Judge.
Christian M. Gunneson and Matthew R. Stersic of Freeman Mathis &
Gary, LLP, Tampa, for Petitioner.
Brandon Cathey and Stephanie Miles of Cathey & Miles, P.A., St.
Petersburg, for Respondent Earl Joseph Gordon.
No appearance for remaining Respondent.
SILBERMAN, Judge.
Bullington Insurance Group, LLC, seeks certiorari review of an
order denying its motion to dismiss. We agree with Bullington that the
trial court departed from the essential requirements of law in failing to
follow this court's decision in Wells Fargo Insurance Services USA, Inc. v.
Blackshear, 136 So. 3d 1235 (Fla. 2d DCA 2014), and grant the petition.

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I. BACKGROUND
This case arises from an auto accident involving Earl Gordon, who
was employed as a driver for SMJP, Inc., at the time of the accident. Mr.
Gordon and SMJP were sued for damages related to the accident, but
neither party appeared in that case and default judgments were entered
against them. Ascendant Commercial Insurance provided vehicle
insurance to SMJP, and Bullington acted as the insurance broker. When
Mr. Gordon started his employment with SMJP, Bullington emailed
Ascendant requesting that Mr. Gordon be added to the policy. Although
Ascendant issued a confirmation that Mr. Gordon was added to the
policy, the policy renewed shortly thereafter without listing Mr. Gordon
as a driver, and he was not listed on the policy at the time of the
accident.
Mr. Gordon filed an amended complaint against Bullington and
Ascendant for breach of contract (Ascendant), negligence (Bullington),
and reformation of the insurance policy. Bullington moved to dismiss
the complaint, arguing that Mr. Gordon could not proceed with claims
against Bullington without first concluding his coverage dispute with
Ascendant. After a hearing on the motion to dismiss, the trial court
entered a written order denying the motion to dismiss. Bullington now
seeks certiorari review of that order.
II. DISCUSSION
As the party seeking certiorari relief, Bullington "must establish '(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.' " Hopf v. Kaszuba, 376 So. 3d 105, 106 (Fla.
2d DCA 2023) (quoting Halsey v. Hoffman, 362 So. 3d 274, 276 (Fla. 2d
DCA 2023)). Bullington has established all three elements.

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This court has previously granted certiorari relief in a similar case.
In Blackshear, Dr. Blackshear filed a complaint against his disability
insurer after the insurer denied his disability claim based on its finding
that he was not eligible for total disability. 136 So. 3d at 1236. The
complaint also alleged a count against his insurance agent and the
agent's company, Wells Fargo, for negligently misrepresenting what
would be covered under the policy. Id. at 1236-37. Wells Fargo
unsuccessfully moved to dismiss or stay/abate the count against it until
Dr. Blackshear's claims against the insurer were resolved. Id. at 1237.
This court held that "the trial court departed from the essential
requirements of law in denying Wells Fargo's motion to dismiss or
stay/abate count five" since Dr. Blackshear's count against Wells Fargo
was premature. Id. at 1238. This court reasoned that "Dr. Blackshear's
count against Wells Fargo is dependent upon a determination that his
disability claim is not covered under his policies with UNUM, and until
the action against UNUM is resolved in UNUM's favor and against Dr.
Blackshear, Dr. Blackshear's count against Wells Fargo is premature."
Id.
In this case, Mr. Gordon's count against Bullington is dependent
upon a determination that his auto accident is not covered under his
employer's policy with Ascendant. If a court determines that the
accident was covered under the policy with Ascendant, Mr. Gordon will
have no claim against Bullington. As such, until his action against
Ascendant is resolved in Ascendant's favor and against Mr. Gordon, his
count against Bullington is premature.
Mr. Gordon attempts to distinguish Blackshear by noting that a
judgment has been entered against him in the auto accident lawsuit.
But this prior judgment does not affect the reasoning in Blackshear. Mr.

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Gordon's breach of contract claim against Ascendant and his claim for
reformation of the policy remain pending. Under Blackshear, until these
actions are resolved, Mr. Gordon's count against Bullington is
premature. See id.
Finally, we note that in Blackshear, this court held that "the
appropriate remedy is a dismissal . . . without prejudice, rather than an
abatement of the count." Id. at 1239. Although Mr. Gordon points to
several cases holding that the abatement of an action is appropriate,
those cases involve bad faith claims. See Fridman v. Safeco Ins. Co. of
Ill., 185 So. 3d 1214, 1230 (Fla. 2016) ("[A]n insured is entitled to a jury
determination of liability and the full extent of his or her damages, which
may be in excess of the policy limits, in the underlying UM case, prior to
litigating a first-party bad faith cause of action."); Allstate Indem. Co. v.
Ruiz, 899 So. 2d 1121, 1130 (Fla. 2005) ("[W]here the coverage and bad
faith actions are initiated simultaneously, the courts should employ
existing tools, such as the abatement of actions and in-camera
inspection, to ensure full and fair discovery in both causes of action.");
Vanguard Fire & Cas. Co. v. Golmon, 955 So. 2d 591, 595 (Fla. 1st DCA
2006) (noting that a "trial court has authority to abate the statutory
claims, rather than to dismiss them, if it appears to the court that
abatement would be in the interest of judicial economy").
Blackshear was decided nine years after Ruiz and specifically held
that a dismissal without prejudice was the appropriate remedy, rather
than abatement. 136 So. 3d at 1239. In Fridman and similar cases
involving bad faith claims, the insured brought a UM action and a bad
faith cause of action against the same insurer, and therefore, abatement
of one claim was the appropriate remedy. 185 So. 3d at 1215. Here,
Bullington and Ascendant are separate entities.

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Accordingly, we grant the petition for writ of certiorari and quash
the trial court's order.
Petition granted.
LaROSE and MORRIS, JJ., Concur.
Opinion subject to revision prior to official publication.