final until disposition of timely filed motion for rehearing.
Petition for Writ of Certiorari from the Circuit Court for
Miami-Dade County Lower Tribunal Nos. 15-17 & 05-10682,
Appellate Division, Jason Bloch, Charles Johnson, and Stephen
Michael J. Neimand, for petitioner.
Offices of Marlene S. Reiss, Esq., P.A., and Marlene S.
Reiss, for respondent.
ROTHENBERG, C.J., and FERNANDEZ and LUCK, JJ.
Automobile Insurance Company ("United Auto") seeks
second-tier certiorari review of a circuit court appellate
decision affirming the county court's order denying
United Auto's motion for entitlement to attorney's
fees filed pursuant to section 768.79, Florida Statutes
(2013), and Florida Rule of Civil Procedure 1.442, following
the plaintiff's, Partners in Health Chiropractic Center
("Partners in Health"), failure to accept United
Auto's nominal proposal for settlement. Because there is
no showing that the circuit court, sitting in its appellate
capacity, failed to afford United Auto procedural due process
in the appeal or failed to apply the correct law resulting in
a miscarriage of justice, we dismiss the petition. See
Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d
1086, 1092 (Fla. 2010).
Yanique Gerlin ("Gerlin") was treated by Partners
in Health in 2003, and thereafter, she assigned her rights to
PIP benefits under her automobile insurance policy issued by
United Auto to Partners in Health. Partners in Health
submitted bills for Gerlin's treatment to United Auto.
After United Auto denied the claim, Partners in Health filed
suit against United Auto in the Miami-Dade county court,
asserting a claim for breach of contract for failing to pay
the PIP benefits due under Gerlin's policy with United
Auto. United Auto answered the complaint and denied that the
treatment was reasonable, related to the automobile accident
Gerlin was involved in on June 19, 2003, or necessary.
the case was pending, United Auto submitted a nominal
proposal for settlement to Partners in Health, which did not
accept the offer. The case proceeded to trial in county
court, and after the jury found that Partners in Health's
services to Gerlin were not related to the June 19, 2003
accident, United Auto filed a motion seeking an order finding
that it was entitled to its attorney's fees pursuant to
section 768.79 and rule 1.442. Partners in Health opposed
United Auto's motion arguing that the proposal for
settlement was not made in good faith.
county court conducted a hearing to determine whether United
Auto's nominal proposal for settlement prior to trial was
a good faith offer. After conducting the hearing, the county
court entered an order denying United Auto's motion for
entitlement to attorney's fees based on the following
four findings: (1) the extensive and protracted length of the
litigation; (2) the prior rulings in favor of Partners in
Health (during litigation a final judgment was initially
issued in favor of Partners in Health, and Partners in Health
was also awarded its fees and costs, but those judgments were
reversed on appeal prior to United Auto making its proposal
for settlement); (3) United Auto had no reasonable
expectation that its offer would be accepted; and (4) the
record before the county court at the time of the entitlement
hearing failed to show that United Auto had no exposure in
the case when it made its proposal for settlement.
Auto appealed the denial of its motion for entitlement to
attorney's fees to the circuit court, sitting in its
appellate capacity. The circuit court appellate panel issued
a detailed opinion rejecting the first three grounds cited by
the county court for denying United Auto's motion for
entitlement to attorney's fees, but affirmed the order on
appeal nevertheless, based on the circuit court's
standard of review (abuse of discretion) and the absence of
the trial transcript and certain medical records. Because we
conclude that the circuit court appellate panel applied the
correct law and nothing in the record indicates that United
Auto was not afforded due process, we dismiss the instant
petition for lack of jurisdiction.
we note that the circuit court appellate panel correctly
reviewed the county court's findings and order under the
abuse of discretion standard of review. See State Farm
Fla. Ins. Co. v. Laughlin-Alfonso, 118 So.3d 314, 315
(Fla. 3d DCA 2013) (holding that the abuse of discretion
standard of review governs review of the ...