19 Fla. L. Weekly Supp. 354a

Online Reference: FLWSUPP 1905MCWAInsurance — Personal injury protection — Attorney’s fees — Appeals — Law of the case — Exceptions — In view of intervening decision by higher court holding that PIP statute does not authorize private cause of action for failure to send explanation of benefits and that it is error to award fees for non-existent EOB count, strict adherence to law of the case, which had established that provider who prevailed on claim that insurer breached contract for failing to provide EOB, would result in manifest injustice, precluding appellate review on issue of entitlement to attorney’s fees and costs — Accordingly, court’s second order awarding attorney’s fees to provider is reversed

UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. NDNC NEUROLOGICAL TREATMENT CENTER, INC., a Florida corporation, a/a/o MCKEEL MCWAN, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 09-56745 (18). L.C. Case No. 06-010148 COCE 56. February 8, 2012. Counsel: Thomas Hunker, Office of the General Counsel, United Automobile Insurance Co., Miami Gardens, for Appellant. Russell Lazega and Yasmin Babian, for Appellee.

OPINION

(TOWBIN SINGER, Judge.) THIS CAUSE came before the Court, sitting in its appellate capacity, upon an appeal by United Automobile Insurance Company (“UAIC”) of the trial court’s Final Judgment and Order on Plaintiff’s Motion to Set Reasonable Attorney’s Fees and Costs entered in favor of NDNC Neurological Treatment Center, Inc., on September 30 2009. The court having considered the briefs filed by the parties and being duly advised in the premises and law, dispenses with oral argument, finds and decides as follows:

On July 11, 2006, NDNC Neurological Treatment Center, Inc. (“NDNC”), filed a two-count complaint against UAIC alleging: (I) Breach of contract for PIP benefits; and (II) Breach of Contract pursuant to section 627.736(4)(b), Florida Statutes, for failure to provide an explanation of benefits or a sufficient/adequate explanation of benefits. On June 4, 2007, NDNC moved for summary judgment with respect to Count II. On June 28, 2007, the trial court granted NDNC’s Motion for Final Summary Judgment as to Count II and reserved jurisdiction to determine attorney’s fees and costs upon the resolution of the remaining counts. NDNC voluntarily dismissed all other counts of their complaint and moved for attorney’s fees based on the Explanation of Benefits (“EOB”) judgment. On November 20, 2007, the trial court determined attorney’s fees and court costs in the amount of $28,384.78. UAIC appealed the order of the trial court. On appeal, this Court reversed the trial court’s final judgment for failure to hold an evidentiary hearing to determine amount of attorney’s fees awarded. [16 Fla. L. Weekly Supp. 631a] This Court then remanded to the trial court for an evidentiary hearing to determine the amount of attorney’s fees to be awarded. UAIC, at the evidentiary hearing held On September 23, 2009, raised the issue of entitlement, which the trial court refused to hear and entered a final judgment against UAIC in the principal amount of $12,977.20 plus prejudgment interest in the amount of $3,190.20 for a total of $16,167.40. UAIC timely filed its Notice of Appeal, appealing the Final Judgment and Order on Plaintiffs Motion to Set Reasonable Attorneys Fees and Costs.

In support of its appeal, UAIC argues that the trial court erred in awarding attorney’s fees based on a nonexistent cause of action, Breach of Contract for Failure to Provide an Explanation of Benefits. Further, UAIC reasons that the PIP statute does not authorize a private cause of action for failure to provide an Explanation of Benefits.

In response, NDNC argues threefold: (1) UAIC waived the right to raise the issue of entitlement to attorney’s fees by failing to raise it as an issue in its first appeal to this Court; (2) UAIC failed to preserve for appeal its challenge to entitlement to attorney’s fees by failing to properly raise the issue to the trial court in the proceedings below; and (3) the trial court could not have committed error where it followed the express Mandate of this appellate court to hold an evidentiary hearing on the sole issue remaining, the amount of attorney’s fees due to NDNC.

In response, UAIC argues that this Court may now consider the issue of entitlement for the first tune based on a decision by the District Court of Appeal of Florida which was not rendered until after this Court issued its opinion in the first appeal.

In Tiede v. Satterfield,the plaintiffs brought an action against defendants for personal injuries arising out of an automobile accident and for plaintiff wife’s loss of consortium. Tiede v. Satterfield, 870 So. 2d 225, 227 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D732a]. The circuit court entered a judgment in favor of plaintiffs for $1,300,797.36 and determined that plaintiffs’ counsel was entitled to fees pursuant to a judgment statute¹ but delayed the determination of amount until the conclusion pending appeal. Id. At the same time, defendants filed their notice of appeal, for which the appellate court affirmed the decision of the trial court. Id. Plaintiffs moved for appellate attorney’s fees pursuant to the judgment statute, however, defendants never filed an objection or response to attorney’s fees. Id. The Second District Court of Appeal of Florida granted plaintiffs’ motion for fees in an amount to be determined by the trial court. Id. The trial court issued a final judgment awarding attorney’s fees on February 23, 2001. Id. Defendants appealed the trial court’s final judgment awarding attorney’s fees, raising for the first time, the issue that the trial court erred in finding plaintiffs’ attorneys were entitled to fees pursuant to the judgment statute. Id. However, subsequent to the grant of appellate attorney’s fees, the Florida Court Supreme Court issued an opinion directly conflicting with an earlier decision, giving the Second District Court of Appeal of Florida the opportunity to review the issue. Tiede, 870 So. 2d at 228-9; See Also Willis Shaw Express v. Hilyer Sod, Inc., 849 So. 2d 276 (Fla. 2003) [28 Fla. L. Weekly S225a].

Generally, departure from the law of the case is disallowed and will foreclose any relitigation on the issue. Tiede, 870 So. 2d at 228. There are, however, exceptional circumstances that would allow a court to depart from the general rule binding the parties to the law of the case at the retrial and at all subsequent proceedings:

“An appellate court should reconsider a point of law previously decided on a former appeal only as a matter of grace, and not as a matter of right; and . . .an exception to the general rule binding the parties to ‘the law of the case’ at the retrial and at all subsequent proceedings should not be made except in unusual circumstances and for the most cogent reasons-and always, of course, only where ‘manifest injustice’ will result from a strict and rigid adherence to the rule.”

Tiede, 870 So. 2d at 228 (quoting Strazzulla v. Hendrick, 177 So.2d 1, 4 (Fla. 1964)). The Florida Supreme Court clarified that reconsideration is possible, “when an intervening decision is issued by a higher court that is contrary to the decision reached in the prior appeal”. Id. The Tiede court held that it would be unjust to deprive defendants of appellate review of the issue of attorney’s fees and costs consistent with Willis Shaw Express. Tiede, 870 So.2d at 299.

In the instant case, the prior award of attorney’s fees is established as law of the case. However, there are exceptional circumstances allowing this Court to depart from the law of the case, as discussed by the Third District Court of Appeal of Florida in A 1st Choice. See United Auto. Ins. Co. v. A 1st Choice Healthcare Sys, 21 So.3d 124 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2268a]; See also United Auto. Ins. Co. v. Coastal Wellness Center, Inc., 28 So. 3d 246 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D501a] (adopting the reasoning of United Auto. Ins. Co. v. A 1st Choice Healthcare Sys., 21 So. 3d 124 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2268a]). The A 1st Choice court determined that the PIP statute does not authorize a private cause of action for failure to send an EOB. Id. (explaining that the county and circuit court departed from the essential requirements of law by implicitly finding that section 627.736(4)(b) affords a private right of action against an insurer for the insurer’s failure to meet the thirty-day deadline for submission of an EOB). The court in A 1st Choice also held that it was error for the court to award attorney’s fees based on a nonexistent EOB count. Section 627.736, Florida Statutes authorizes one cause of action: a cause of action for personal injury benefits. A strict adherence to the rule binding the parties to the law of the case would result in manifest injustice, precluding appellate review on the issue of entitlement to attorney’s fees and costs. Accordingly, it is hereby

ORDERED AND ADJUDGED that the circuit court’s Second Order awarding NDNC attorney’s fees is REVERSED.

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¹The judgment statute for which plaintiffs’ counsel relies upon is section 768.79, Florida Statutes (2000).

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