19 Fla. L. Weekly Supp. 169a
Online Reference: FLWSUPP 1903HERMInsurance — Personal injury protection — Declaratory judgment — No error in granting insurer’s motion for summary judgment on count seeking declaration concerning provider’s presuit entitlement to copy of declarations page and policy on remand following appellate court’s reversal of prior summary judgment in favor of provider on that count — No error in granting insurer’s motion to set aside provider’s notice of voluntary dismissal without prejudice of this count
FLORIDA EMERGENCY PHYSICIANS a/a/o Greg Herman, Appellant, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 09-72-AP. L.T. Case No. 04-SC-2517. August 11, 2011. Appeal from the County Court for Seminole County. Honorable Donald L. Marblestone, County Court Judge. Counsel: Kevin B. Weiss, Maitland, for Appellant. Michael C. Clarke, Tampa, for Appellee.
(ALLEY, Judge.) On or about December 13, 2003, Greg Herman suffered injuries as a result of a motor vehicle accident that occurred while he was riding as a passenger in a vehicle that he did not own. On December 18, 2003, Mr. Herman was provided treatment by Florida Emergency Physicians (“FEP”), and he executed Consent to Treatment and Authorizations and Guarantee to FEP. FEP thereupon submitted a request for payment to Progressive Express Insurance Company (“Progressive”). On April 5, 2004 pursuant to F.S. 627.736(11) a notice of intent to initiate litigation was submitted by FEP to Progressive. Progressive did not pay the claim.
On June 30, 2004 Florida Emergency Physicians (“FEP”) a/a/o the “insured F. S.§ 627.736 (5) Greg He [r] man (“Herman”), an alleged Florida resident, filed an initial Complaint alleging that on Claim Nr. 0320076007, Progressive had issued a current policy to Herman providing PIP benefits and medical payments/expense coverage, Count I alleged a Breach of Contract pertaining to “necessary medical, rehabilitative, nursing and remedial care” provided by FEP to the assignor, due to his personal injuries suffered on December 13, 2003 in a motor vehicle accident in the car he was riding in, but did not own, for which Progressive did not make payment. Count II Demanded Declaratory Relief pursuant to F. S. Chapter 86, alleging that FEP is a direct beneficiary of the contract with Progressive, and is entitled to benefits for medical treatment described in Count I under the coverage of the insurance policy with Progressive. FEP had requested a copy of the PIP/Med pay payout log, a copy of the policy and a declarations page showing the coverage in effect, to which it was alleged that Progressive had failed to respond. As a result, FEP was “in doubt” as to their rights under the policy, and needed judicial determination by way of a Declaration of Judgment. On January 3, 2005, without objection, an amended complaint was filed by FEP wherein there was a change to paragraph 1 that the damages did not exceed $500.00, instead of $2,500.00 and to paragraph 13 that Progressive failed to pay $234.00 instead of $419.20 in covered losses. There were no other changes.
On October 19, 2007, 83 days after receipt of the letter from Progressive F. S. 57.105, FEP filed a Notice of Voluntary Dismissal without prejudice of Count I only of the amended complaint, asserting that they will proceed with Count II F. R. Civ. P. 1.420 (a)(1).
On January 28, 2008 nunc pro tunc November 5, 2007, the date of the hearing, the trial court denied Progressive’s Motion for Summary Judgment, and granted FEP’s Motion for Summary Judgment as to Count II. Progressive appealed on February 15, 2008. On February 13, 2009, and as mandated on March 30, 2009, The Circuit Appellate Court (Perry, J.) REVERSED the trial court order granting Summary Judgment in favor of FEP on Count II concerning its presuit entitlement to a copy of the declarations page and policy, and remanded the case to the trial court for further proceedings, Progressive American Ins. Co. v. Rural/Metro Corp. of Florida, 994 So. 2d 1202 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D2649a]; accord State Farm Mutual Automobile Ins. Co. v. Florida Emergency Physicians a/a/o Robert Davis Appeal No. 06-51-AP (Circ. Ct. 18th Jud. Cir Feb. 6. 2009 Mandate issued February 23, 2009 [16 Fla. L. Weekly Supp. 305b]. (Dickey, J.)
On August 21, 2009 pursuant to the Mandate entered on March 30, 2009, remanding the case to the trial court for further proceedings, Progressive filed a Motion to Enter Final Judgment for Progressive as to the remaining Count II of the Amended Complaint.
On September 3, 2009, prior to the hearing on September 25, 2009, FEP filed a Notice of Voluntary Dismissal without Prejudice on the remaining Count II of their Amended Complaint. On September 24, 2009 Progressive filed a Motion to Set it aside.
On September 25, 2009, the trial court heard Progressives Motion to enter Final Judgment and Motion to set aside FEP’s Notice of Voluntary Dismissal of Count II, and granted Progressive’s Motion for Summary Judgment. The trial court also granted Progressives separate Motion to Set Aside FEP’s filed a Notice of Voluntary Dismissal without Prejudice the remaining Count II of their Amended Complaint filed on September 3, 2009 and reserved jurisdiction to determine attorney fees and costs F. S. § 57.105
On October 1, 2009 FEP timely filed Notice of Appeal to the 18th Judicial Circuit Appellate Court.
The circuit court has Jurisdiction to hear appeals from final orders as well as non final orders of a trial court. F. R. App. P. 9. 030 (c) (1) §§ (A), (B) Blore v. Fierro, 636 So. 2d 1329 (Fla., 1994). Review on appeal is de novo. This enables the Appellate Court to make its own determination as to the correct principle of law that should have been applied. Walker v. Walker, 464 So. 2d 538 (Fla. 1985); Southern Baptist Hospital, Inc. v. Welker, 908 So. 2d 317 (Fla.2005) [30 Fla. L. Weekly S259a].
Once an issue of law has been decided by a higher court, as in the instant proceedings, in this instance the Circuit Court acting in its appellate capacity, it becomes the law of the case. Ameriseal of North East Florida, Inc., v. Leiffer, 738 So. 2d 993 (Fla. 5th DCA 1999) [24 Fla. L. Weekly D1685a]; Brunner Enterprises, Inc., v. Department of Revenue, 452 So. 2d 550 (Fla. 1984). On September 25, 2009, pursuant to Progressive American Ins. Co. v. Rural/Metro Corp. of Florida, 994 So. 2d 1202 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D2649a]; and State Farm Mutual Automobile Ins. Co. v. Florida Emergency Physicians a/a/o Robert Davis Appeal No. 06-51-AP (Circ. Ct. 18th Jud. Cir opinion rendered Feb. 6. 2009, Mandate issued February 23, 2009, the trial court properly complied, vacated its previous order granting FEP’s motion for Summary Judgment, and granted Final Judgment for Progressive on their Motion for Summary Judgment on the sole remaining Count II of FEP’s Complaint seeking a Declaratory Judgment F. S. § 86.011. A trial court has no discretion to change the law of the case. When a case has once been decided on appeal to the circuit court, the court is bound by the decree as the law of the case so long as the parties remain the same, the facts have not changed and no manifest injustice will result, which the court so finds. Robinson v. Weilland, 988 So. 2d 110 (Fla. 5th DCA 2008) An appellate court has the authority to reconsider a previous ruling that established the law of the case. However, no party is entitled as a matter of right to have the law of the case reconsidered, and a change in the law of the case should only be made in those situations where strict adherence to the rule would result in “manifest injustice.” Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965). id., at 4 quoting Beverly Beach Properties v. Nelson, 68 So.2d 604 (Fla. 1953. No such findings were made, nor could they be made.
The mere fact that an action for costs and fees is incident to the merits of the original case does not preclude an order on those issues from being a final decision. It is noted in passing that a motion for rehearing is not authorized as to non final orders, and they cannot delay the rendering of a non final order, or toll the time for filing a Petition for Certiorari. However, it may delay the rendering of a final order and toll the time for seeking a plenary appeal. F. R. App. P. 9.020 (h); Caufield v. Cantele 837 So. 2d 371 (Fla. 2002) [27 Fla. L. Weekly S1046a] affirming 745 So. 2d 431 (Fla. Fifth DCA 1999) [24 Fla. L. Weekly D2520a] Out of Hernando County, and receding from Chatios v. City of Hallendale, 220 So. 2d 353 (Fla. 1968).
FEP Notice of Voluntary Dismissal of Count II for Declaratory Judgment and Progressive Motion to Set Aside FEP Notice of Voluntary Dismissal. The trial court should normally be deferred to in its determination as to whether a declaration of rights is necessary, and a dismissal of a count for declaratory judgment is reviewed under the abuse of discretion standard. The Court can find no such abuse. Based on the March 30, 2009 mandate of the Circuit Court acting in its appellate capacity there is no bona fide, actual present practical need for such declaration. FEP cannot be said to have a factual and or legal actual, present adverse or antagonistic interest in the subject matter in view of its prior filing of a Notice of Voluntary Dismissal. The trial court in carrying out the mandate is not giving legal advice or answering curious questions. Palumbo v. Moore, 777 So. 2d 1177 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D489b] citing May v. Holley, 59 So. 2d 636, 639 (Fla. 1952).
It is noted that previously, on October 19, 2007, FEP filed a notice of Voluntary Dismissal without prejudice as to Count 1 of the Amended Complaint, asserting that they will proceed with Count II, requesting a Declaratory Judgment. F. R. Civ. P. 1.420 (a)(1). A Notice of Voluntary Dismissal without prejudice does not operate as res judicata because it is not a ruling of the court on the merits. Singleton v. Greymar Associates, 882 So. 2d 1004, 1006 (Fla. 2004) [29 Fla. L. Weekly S481a]; Brown V. Ameri Star, Inc 884 So. 2d 1065 (Fla. 2nd DCA 2004) [29 Fla. L. Weekly D2317b]; Hook v. Bay Financial Sav. Bank, 655 So. 2d 1297 (Fla. 5th DCA 1995) [20 Fla. L. Weekly D1367a] holding that a complaint dismissed with prejudice did not operate as res judicata, and did not bar a motion in trial court to amend an amount of final judgment; but cf CJS §964 “. . .a cause of action previously voluntarily dismissed with prejudice (emphasis supplied) on notice is res judicata of all questions that have been litigated in the suit Capital Bank v. Needle, 596 So. 2d 1134 (Fla. 4th DCA 1992). Caufield v. Cantele 837 So. 2d 371 (Fla. 2002) [27 Fla. L. Weekly S1046a] affirming 745 So. 2d 431 (Fla. Fifth DCA 1999) [24 Fla. L. Weekly D2520a] Out of Hernando County, and receding from Chatios v. City of Hallendale, 220 So. 2d 353 (Fla. 1968).
Based on the foregoing findings of fact and conclusions of law, the decision of the trial court is AFFIRMED.
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