26 Fla. L. Weekly D1194c
Appeals — Certiorari — Insurance — Personal injury protection — District court of appeal concludes that it improvidently granted certiorari to review case in which circuit court acting in its appellate capacity affirmed a county court’s erroneous ruling where petitioner was not deprived of due process in circuit court, and isolated error from which circuit court has already receded in a subsequent appeal cannot be characterized as a miscarriage of justice
PROGRESSIVE SPECIALTY INSURANCE COMPANY, Petitioner, v. BIOMECHANICAL TRAUMA, ASSOCIATION, INC., Respondent. 2nd District. Case No. 2D00-1197. Opinion filed May 9, 2001. Petition for Writ of Certiorari to the Circuit Court for the Thirteenth Judicial Circuit for Hillsborough County; sitting in its appellate capacity. Counsel: Hinda Klein of Conroy, Simberg & Ganon, P.A., Hollywood, Florida, for Petitioner. Mark T. Tischhauser, Tampa, Florida and Wendy Coxhead, Newcastle, Washington, for Respondent.
BY ORDER OF THE COURT:
Respondent’s motion for extension of time and rehearing is denied. However, the court, on its own motion, grants rehearing. The opinion dated November 17, 2000, is withdrawn, and the attached opinion is substituted therefor.
__________________ON MOTION FOR REHEARING[Original Opinion at 25 Fla. L. Weekly D2675c]
(PER CURIAM.) Respondent, Biomechanical Trauma Association, Inc. (Biomechanical), seeks rehearing of our opinion granting a petition for writ of certiorari in this case. It argues that we should retract our decision in light of the supreme court’s recent opinion in Ivey v. Allstate Insurance Co., 774 So. 2d 679 (Fla. 2000). We conclude that certiorari was improvidently granted in this case.
Petitioner, Progressive Specialty Insurance Company (Progressive), sought review of the circuit court’s appellate opinion affirming the county court’s final judgment in favor of Biomechanical. The trial court had entered final judgment in the amount of $131.09 on the mistaken belief that an insurer, as a condition precedent to reducing medical charges and/or defending a lawsuit for benefits, must first obtain a report from a physician licensed with the same level of licensure as the treating physician stating that the charges are excessive. The circuit court affirmed this erroneous ruling. Thereafter, the circuit court recognized its error and receded from this case in a subsequent appeal. State Farm Mut. Auto. Ins. Co. v. Lockett, No. 00-236 (Fla. 13th Jud. Cir. July 10, 2000) [7 Fla. L. Weekly Supp. 661].
Although we disagree with the outcome in both the county court and the circuit court, we conclude that Progressive was not deprived of due process in the circuit court. As an isolated error, the circuit court’s affirmance in this case cannot be characterized as a miscarriage of justice. Given that the circuit court has already receded from its opinion in this case, it will have no adverse precedential affect upon future cases. Although the legal analysis in our opinion, which has already been published as Progressive Specialty Insurance Co. v. Biomechanical Trauma Ass’n, Inc., 25 Fla. L. Weekly D2675 (Fla. 2d DCA Nov. 17, 2000), appears correct, we withdraw that opinion. Based on the supreme court’s ruling in Ivey, we deny the petition for writ of certiorari. (ALTENBERND, A.C.J., and CASANUEVA, J., and CAMPBELL, MONTEREY, (SENIOR) JUDGE, Concur.)
