18 Fla. L. Weekly Supp. 1093a
Online Reference: FLWSUPP 1811ALEX Insurance — Personal injury protection — Coverage — Appeals — It would be improper for appellate court to rule on appeal of county court order granting partial summary judgment on issue of applicability of fee schedule in 2008 PIP statute on basis of district court opinions on issue issued after county court’s ruling — Appeal is dismissed without prejudice to parties moving for reconsideration of county court’s order in light of recent appellate opinions
DCI MRI, Inc., a/a/o LAKIESHA ALEXANDER, Petitioner, v. DAIRYLAND INSURANCE COMPANY, Respondent. Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County, Civil Appellate Division. Case No. 50201CA027097XXXXMB, Division “AY.” August 31, 2011. Appealed from the County Court of Palm Beach County. Counsel: Joseph R. Littman, Boca Raton, for Petitioner. Mark D. Tinker, St. Petersburg, for Respondent.
[Lower court order at 18 Fla. L. Weekly 406b.]
(PER CURIAM.) DISMISSED.
Petitioner, DCI MRI, Inc. (“DCI”) appealed an order of the County Court entered on September 21, 2010 granting Respondent Dairyland Insurance Company’s (“Dairyland”) Motion for Partial Summary Judgment and Granting Defendant’s Motion to Stay. The underlying action involved a claim by DCI against Dairyland for an alleged improper application of Florida statutory guidelines and federal Medicare legislation. Dairyland sought a stay from the trial court in the instant action, pending a ruling by the Second District Court of Appeal in a case involving substantively analogous issues. On October 21, 2010, DCI appealed the order, arguing, inter alia, that the entry of summary judgment was substantively erroneous and that deferring to a forthcoming Second District Court of Appeals ruling was administratively improper because such a decision would not be binding on the trial court once the Fourth District Court of Appeals ruled on the issues.
After DCI filed the instant Petition, but before the Court entered a ruling on its merits, both the Second and Fourth District Courts of Appeal issued rulings which would likely have impacted the lower court’s ruling in this case.1 As such, it is improper for this Court to rule in this case on the basis of precedent which did not exist at the time the trial court made its ruling. Accordingly, the Petition is DISMISSED. This ruling of dismissal is not an adjudication on the merits and is therefore without prejudice for the parties to move for reconsideration of the trial court’s order in light of the recent appellate rulings. (KELLEY, McCARTHY, and HOY, JJ. concur)
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1Nationwide Mutual Fire Ins. Co., et. al. v. AFO Imaging, Inc., 36 Fla. L. Weekly D1463b, 2011 WL 2622311 (Fla. 2d DCA July 6, 2011); Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 36 Fla. L. Weekly D1062a, 2011 WL 1878148 (Fla. 4th DCA May 18, 2011), reh’g denied, Fla. 4th DCA July 5, 2011.
