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United Automobile Insurance Co. v. Partners in Health Chiropractic Center

Florida Court of Appeals, Third District

December 6, 2017

United Automobile Insurance Company, Petitioner,
v.
Partners in Health Chiropractic Center, a/a/o Cecilia Yanique Gerlin, Respondent.

         Not final until disposition of timely filed motion for rehearing.

         On 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 Millan, Judges.

          Michael J. Neimand, for petitioner.

          Law Offices of Marlene S. Reiss, Esq., P.A., and Marlene S. Reiss, for respondent.

          Before ROTHENBERG, C.J., and FERNANDEZ and LUCK, JJ.

          ROTHENBERG, C.J.

          United 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).

         FACTS

         Cecilia 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.

         While 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.

         The 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.

          United 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.

         ANALYSIS

         First, 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 ...


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