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Allstate Fire and Casualty Insurance Co. v. Hallandale Open MRI, LLC

Florida Court of Appeals, Third District

November 29, 2017

Allstate Fire and Casualty Insurance Company, Petitioner,
Hallandale Open MRI, LLC, a/a/o Alexia Blake, Respondent.

         This Opinion is not final until disposition of any further motion for rehearing and/or motion for rehearing en banc. Any previously-filed motion for rehearing en banc is deemed moot.

         On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County No. 13-461, Appellate Division, Jacqueline Hogan Scola, Jorge Cueto, and Ariana Fajardo Orshan, Judges.

          Shutts & Bowen, and Suzanne Youmans Labrit and Douglas G. Brehm (Tampa); Cozen O'Connor, and Peter J. Valeta (Chicago, IL), for petitioner.

          Marlene S. Reiss, for respondent.

          Before SALTER, LOGUE and SCALES, JJ.

          SALTER, J.

         On Motions for Rehearing and for Certification

         On consideration of the respondent's motion for rehearing and motion to certify questions of great public importance, and the response, we withdraw our opinion in this case issued April 19, 2017, [1] and replace it with the opinion which follows.

         I. The Underlying Legal Issue and Final County Court Judgment

         This case involves a dispute between Allstate Fire and Casualty Insurance Company ("Allstate") and a medical provider (Hallandale Open MRI, or "Hallandale") regarding a single legal issue: whether a personal injury protection ("PIP") automobile insurance policy issued by Allstate contains language sufficiently specific to limit provider reimbursements to 80% of the maximum charges described in section 627.736(5)(a)2.f., Florida Statutes (2013). The issue arose in the Miami-Dade County Court, based on stipulated facts pertaining to the policy and the medical services provided by Hallandale. In October 2013-a time when this Court had not ruled on the specific legal issue presented to the County Court-the County Court issued a directed verdict for Hallandale (determining that the Allstate policy language was insufficiently specific to invoke the statutory limitations on payment) and entered final judgment for Hallandale in the amount of $407.26, plus prejudgment interest.

         II. Allstate's Appeal to the Circuit Court Appellate Division

         Allstate appealed to the appellate division of the Miami-Dade Circuit Court. Allstate did not seek a stay pending review, and Hallandale did not seek execution or other enforcement of the County Court judgment. In December 2015, the three-judge Circuit Court appellate division panel affirmed the final judgment against Allstate. The five-page opinion affirming the County Court judgment surveyed pertinent case law from the Florida Supreme Court and several of Florida's District Courts of Appeal.

         In Geico General Insurance Co. v. Virtual Imaging Services, Inc., 141 So.3d 147, 159 (Fla. 2013), the Florida Supreme Court held that PIP insurers were required to notify insureds by specifically electing the limitations in the Medicare fee schedules in order to apply them to medical reimbursement claims. The appellate division then observed that the First and Fourth District Courts of Appeal had issued conflicting decisions regarding the sufficiency of such notice, in Allstate Fire & Casualty Insurance v. Stand-Up MRI of Tallahassee, P.A., 188 So.3d 1 (Fla. 1st DCA 2015) (policy provided legally sufficient notice), and Orthopedic Specialists v. Allstate Insurance Co., 177 So.3d 19 (Fla. 4th DCA 2015) (identical policy language not legally sufficient). The appellate division also noted that this Court had not issued a controlling decision on the issue.

         After surveying the reported decisions, the Circuit Court appellate division found the policy language insufficient to support the statutory limitation computed using the Medicare fee schedules and, as already noted, affirmed the County Court final judgment in favor of Hallandale. In early 2016, Allstate filed a petition seeking second-tier certiorari from the appellate division decision. Allstate's petition cited four Miami-Dade Circuit Court appellate division opinions that directly conflicted with the appellate division decision (and on the specific, controlling legal issue within the decision) involved in the present case.[2]

         Hallandale opposed the second-tier petition on jurisdictional and substantive grounds. Allstate did not seek a stay of enforcement of the County Court's judgment, nor did Hallandale seek to enforce the judgment, while the petition was pending.

         III. Florida Supreme Court Accepts Review of the Conflict Cases from the First and Fourth Districts

         On January 20, 2016, the Florida Supreme Court accepted jurisdiction to review the two 2015 District Court of Appeal conflict cases from the First and Fourth Districts, Stand-Up MRI and Orthopedic Specialists, cited above. Allstate Ins. Co. v. Orthopedic Specialists, No. SC15-2298 (Fla. Jan. 20, 2016) (accepting jurisdiction). A decision resolving the conflict issue was issued in January 2017 (discussed further below). Allstate Ins. Co. v. Orthopedic Specialists, 212 So.3d 973 (Fla. 2017).

         IV. An Intervening Decision by This Court on the Conflict Issue

         While the petition for second-tier certiorari was pending in this Court and the conflict case was pending in the Florida Supreme Court, a panel of this Court issued a decision on the same issue, as certified by the Miami-Dade County Court for direct review under Florida Rule of Appellate Procedure 9.030(b)(4)(A) (discretionary review of an order certified by the county court to be of great public importance). Fla. Wellness & Rehab. v. Allstate Fire & Cas. Ins. Co., 201 So.3d 169 (Fla. 3d DCA 2016) (holding that the Allstate policy language was clear and unambiguous, as determined by the First District in Stand-Up MRI). That decision, issued in July 2016, also certified conflict with the Fourth District opinion in Orthopedic Specialists.

         IV. This Court's Dismissal of Allstate's Petition

         Two months after this Court's opinion deciding the conflict issue, but while the conflict was still pending before the Florida Supreme Court, we dismissed Allstate's petition for lack of jurisdiction. Judge Logue dissented in an opinion which stressed the importance of exercising jurisdiction when the County Court and Circuit Court appellate division decisions on an issue are conflicting, and particularly when the District Court for that district has issued an opinion resolving the conflict. Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, 208 So.3d 741 (Fla. 3d DCA 2016). Applying Florida Supreme Court case law limiting our exercise of second-tier certiorari jurisdiction, particularly Custer Medical Center v. United Automobile Insurance Co., 62 So.3d 1086 (Fla. 2010), and Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885 (Fla. 2003), we concluded that the Circuit Court appellate division panel had not violated any clearly established principle of law resulting in a miscarriage of justice. Custer, 62 So.3d at 1092.

         Although this Court had by then decided the conflict issue in favor of Allstate's position, the Florida Supreme Court had not yet ruled on the conflict at that time, and we observed that the Circuit Court appellate division did not have our decision before it when it ruled at the end of 2015.

         V. Allstate's Motion for Rehearing; the Supreme Court's Opinion

         In November 2016, Allstate moved for rehearing and rehearing en banc regarding our dismissal opinion, contending that we had jurisdiction to consider the petition for second-tier certiorari and that our own decision on the merits of the conflict issue required us to quash the Circuit Court appellate division's decision. While those motions were being briefed and considered, the Florida Supreme Court issued its decision on the conflict issue, Allstate Insurance Co. v. Orthopedic Specialists, 212 So.3d 973 (Fla. 2017). That decision concluded that Allstate's policy language on reimbursement limitations under the PIP statute was legally sufficient and not ambiguous, a decision consistent with this Court's panel decision in Florida Wellness a few months earlier, and contrary to the Circuit Court appellate division opinion under consideration in the present case.

         Had the Florida Supreme Court's opinion on the conflict issue or this Court's opinion on that issue been available to the Circuit Court appellate division as it considered the question in late 2015, the appellate division panel would have been duty bound to follow either of those decisions. Given the continued, apparent willingness of Allstate and Hallandale[3] to continue the proceedings in the present case, however, we initially concluded that the Florida Supreme Court's resolution of the conflict issue in January 2017 compelled a new analysis and different result.

         Allstate's motion for rehearing, supplemented by the Supreme Court opinion in its favor, persuaded a majority of this panel that we should take jurisdiction of the petition for second-tier certiorari, apply that decision to the same issue presented in the petition, and quash the December 2015 Circuit Court appellate division decision in favor of Hallandale. We granted Allstate's motion for rehearing, exercised jurisdiction, and applied Orthopedic Specialists as proposed by Allstate. Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, 42 Fla.L.Weekly D893 (Fla. 3d DCA Apr. 19, 2017).[4]

         In a vigorous dissent, Judge Scales focused on the retroactive effect of such a result and the absence of error in the appellate division's decision at the time it considered the case and issued its opinion:

Employing a de novo standard of review, the circuit court's appellate division relied upon the appropriate precedent to affirm the trial court's construction of Allstate's insurance policy. The appellate court's only "error" was failing to accurately predict which of two persuasive, yet competing, precedents the Florida Supreme Court ultimately would adopt.

Id. at D897 (Scales, J., dissenting).

         VI. Hallandale's Motion for Rehearing ...

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