19 Fla. L. Weekly Supp. 52a
Online Reference: FLWSUPP 1901NORTInsurance — Personal injury protection — Coverage — Exhaustion of policy limits — Post-suit exhaustion of benefits — Questions certified
WELLNESS ASSOCIATES OF FLORIDA, INC, Daniel North, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50 2010 SC 003480 XXXX SB RD. September 22, 2011. Reginald Corlew, Judge.
AFFIRMED. Certified questions answered in part. 39 Fla. L. Weeekly D491
AGREED ORDER CERTIFYING TO THE FOURTHDISTRICT COURT OF APPEAL QUESTIONS OF GREATPUBLIC IMPORTANCE AFFECTING THE UNIFORMADMINISTRATION OF JUSTICE PURSUANT TO F.S.§34.017(1)(b) and Fla.R.App.P. 9.030(b)(4) and 9.160[Original Opinion at 18 Fla. L. Weekly Supp. 1056a]
THIS MATTER came to be heard before the Court on September 22, 2011 on Plaintiff’s Motion To Certify Question Of Great Public Importance. Defendant agrees with Plaintiff’s motion and has also agreed to the form of the questions presented herein-below which the parties have requested this Court to certify to the Fourth District Court of Appeal.
1. On July 26, 2011 this Court entered an Order granting Defendant’s motion for summary judgment as to exhaustion of benefits. In it, this Court set forth its findings of fact and conclusions of law, which are hereby incorporated into this Order. [18 Fla. L. Weekly Supp. 1856a]
2. By motion filed on August 4, 2011 Plaintiff requested that this Court certify the issues presented in this case to the Fourth District Court of Appeal. Pursuant to F.S. §34.017, a county court is permitted to certify a question to the district court of appeal in a final judgment if the question may have statewide application, and (a) is of great public importance or (b) will affect the uniform administration of justice.
3. This matter is one of a great many lawsuits of this type where an insurer has reduced or denied payment and, after said reduction or denial, the insured’s benefits have subsequently exhausted to other medical providers who submitted bills after the bills at issue.
4. In this matter, the insured’s benefits exhausted after the Defendant was served with the complaint.
5. Recently, this Court decided another PIP case which involved an exhaustion of PIP benefits that took place after the insurer’s receipt of the pre-suit demand letter, but before the service of the lawsuit.1 In that case, this Court certified three questions of great public importance to the Fourth District Court of Appeal which are the same as the first three questions posed herein-below. This Court understands that the Fourth District has accepted jurisdiction of the appeal filed in the Cabrera matter.
6. Because the instant case involves a post-suit exhaustion of benefits, while the Cabrera appeal involves a pre-suit exhaustion of benefits, certifying the three questions that were certified in Cabrera to the Fourth District — with the added fourth question set forth herein below — would present a more complete picture of the exhaustion of benefits issue to the Fourth District. This issue will be a continuing and ongoing issue affecting numerous insurers and possibly thousands of insureds and medical providers.
7. The parties and this Court agrees that the issue presented by this case should be certified to the Fourth District Court of Appeal to prevent inconsistent rulings among Florida’s 67 county courts and 20 circuit courts. This issue has been litigated in many county courts and circuit courts with inconsistent rulings. PIP suits will continue to be filed throughout the State of Florida until controlling precedent arises from a District Court of Appeal which will be binding in all county and circuit courts. See Progressive Exp. Ins. Co. v. McGrath Comty. Chiropractic, 913 So.2d 1281, 1287 (Fla. 2nd DCA 2005) [30 Fla. L. Weekly D2622b] (recognizing that PIP issues are heavily litigated in county courts and erroneous circuit court decisions have “great influence, thus exacerbating the effect of legal error.”).
8. Because PIP disputes generally concern coverage amounts of $10,000 or less, primary jurisdiction for these cases rests with county courts, with direct appellate review to the circuit courts. Fla.R.App.P. 9.030(c)(1)(A). Thus, the normal appellate process cannot lead to a decision that will bind the county and circuit courts throughout Florida. See Stanfill v. State, 384 So.2d 141, 143 (Fla. 1980). (“The decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this [Supreme Court.”).
9. Given the mandatory nature of PIP insurance and the number of insurance carriers operating within the State, and the number of suits being filed which address the subject issues, this issue will likely be considered by many, if not all, county courts. This will result in appeals to many of Florida’s circuit courts. See McGrath, supra.
10. For these reasons, the parties believe that a district court of appeal decision will not only promote uniformity in this disputed area of law for all pending and future cases, but will also serve to avoid the needless waste of judicial resources for county and circuit courts throughout the State.
11. Therefore, for the foregoing reasons the Court grants Plaintiff’s motion and certifies the following questions great public importance to the Fourth District Court of Appeal, pursuant to F.S. §34.017, and Fla.R.App.P. 9.0309(b)(4) and 9.160:
1. Did Simon v. Progressive Express Ins. Co., 904 So.2d 449, 450 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b] abrogate the English rule of priorities as announced by the Florida Supreme Court in Boulevard_National Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965) and applied to PIP cases in State Farm Fire and Casualty Co. v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990)?
2. Does an insurer’s reliance on an interpretation of the No-Fault statute which is later determined to be an incorrect interpretation constitute the “reasonable proof” referenced in that portion of F.S. Section 627.736(4)(b) which states that “However, notwithstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment”?
3. In a Personal Injury Protection matter, may a trial court enter final summary judgment in favor of an insurer on an exhaustion of benefits defense when plaintiff has alleged in its complaint that the insurer “has in bad faith, manipulated or otherwise acted improperly in reducing the Plaintiff’s bills.”?
4. In an action by an assignor for No Fault Insurance benefits founded on a claim for breach of contract, does a post-suit exhaustion of benefits absolve the insurer from any responsibility to pay an otherwise valid claim where the exhaustion occurred after the insurer: (a) paid an amount that the provider claims is less than required by the contract; (b) received a pre-suit demand letter notifying the insurer of the medical provider’s dispute; and (c) was served with the filed Complaint?
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1Northwood Sports Medicine (Suzanne Cabrera) v. State Farm, Case No. 502009SC009568SB.
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