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.
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.
& 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.
SALTER, LOGUE and SCALES, JJ.
Motions for Rehearing and for Certification
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,  and replace it with the opinion which
The Underlying Legal Issue and Final County Court
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
Allstate's Appeal to the Circuit Court Appellate
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.
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.
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.
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
Florida Supreme Court Accepts Review of the Conflict
Cases from the First and Fourth Districts
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).
An Intervening Decision by This Court on the Conflict
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
This Court's Dismissal of Allstate's
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.
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.
Allstate's Motion for Rehearing; the Supreme
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.
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 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.
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).
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).
Hallandale's Motion for Rehearing ...