24 Fla. L. Weekly Supp. 304c

Online Reference: FLWSUPP 2404WESTInsurance — Personal injury protection — Reconsideration — Successor judge has authority to reconsider rulings made by disqualified predecessor judge, but parties are not entitled to have order entered by predecessor judge voided as matter of right — Demand letter — No error in predecessor judge’s ruling that demand letter that failed to account for amounts already paid by insurer was insufficient to satisfy PIP statute

WEST COAST MEDICAL MANAGEMENT INC. a/a/o Carola Portillo, Plaintiff, vs. MGA INSURANCE COMPANY, INC., Defendants. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division 02. Case No. 11-21471-CC-25. June 9, 2016. Gina Beovides, Judge. Counsel: Amado Alan Alvarez, The Alvarez Trial Law Firm, Miami, and Jose R. Iglesia, Jose R. Iglesia & Associates, Inc., Miami, for Plaintiff. Anthony G. Atala, Kubicki Draper, P.A., Miami, for Defendant.

ORDER DENYING PLAINTIFF’S MOTIONFOR REHEARING

THIS MATTER came before this court for hearing on May 12, 2016 on Plaintiff’s Motion for Rehearing, and after reviewing the court file, and hearing argument of counsel, it is

ORDERED AND ADJUDGED:

Plaintiff’s Motion for Rehearing is DENIED.

LEGAL ANALYSIS

The Court has the authority to rule on the motion for rehearing and reconsideration based on Florida Rule of Judicial Administration Rule 2.330(h), which provides that “Prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration. . . .” See also Berry v. Berry, 151 So. 3d 1293 (Fla. 1st DCA 2014)[40 Fla. L. Weekly D74a]. Thus, a successor judge has the authority and discretion to reconsider a disqualified judge’s rulings that were made prior to the disqualification. See L.I. v. Dep’t of Children and Family Servs., 972 So. 2d 221, 221-22 (Fla. 3d DCA 2007)[32 Fla. L. Weekly D2896c].

However, “[a]lthough an order entered by a judge who is later disqualified is subject to reconsideration by a successor judge, a party is not entitled to have the order vacated as a matter of right.” Buckner v. Cowling, 135 So. 3d 383 (Fla. 5th DCA 2014)[39 Fla. L. Weekly D256c]. At most, such orders are merely voidable and not void. Hirschhorn v. Avondale Funding.com, 933 So. 2d 1290 (Fla. 4th DCA 2006)[31 Fla. L. Weekly D2047b]; Schlesinger v. Chem. Bank, 707 So. 2d 868, 869 (Fla. 4th DCA 2002)[23 Fla. L. Weekly D624b].¹ Instead, when a successor judge is considering whether to vacate or modify a predecessor judge’s ruling, it should do so if the prior ruling is based on a clearly mistaken interpretation of the law. See Ognenovic v. Giannone, Inc., 184 So. 3d 1135, 1137 (Fla. 4th DCA 2015)[40 Fla. L. Weekly D2261a]. Thus, whether the allegations in the motion for rehearing are true is not determinative of whether said motion should be granted, but rather rests on the legal merits of the initial ruling.

Here, initial court’s ruling is consistent with prior decisions of the 11th Judicial Circuit sitting in appellate capacity finding plaintiff’s demand letter did not comply with §627.736(10) because it did not take into account the amounts already paid by the insurer and filed a lawsuit for an unspecified amount of damages. Government Employees Ins. Co. vs. Open MRI of Miami-Dade, Ltd., 18 Fla. L. Weekly Supp. 337a (Fla. 11th Cir. Ct. 2011). See also Venus Health Center (a/a/o Joaly Rojas) v. State Farm Fire & Cas. Co., 21 Fla. L. Weekly Supp. 496a (Fla. 11th Cir. Ct. 2014). While other Court may have taken a different path, the initial court’s ruling in this matter was based on its interpretation of the law that strict specificity must be adhered to regarding the demand letter requirement; other courts throughout the state have also followed such interpretation of the statute. As such, Plaintiff’s motion for rehearing is denied.

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¹The party moving for reconsideration is not even automatically entitled to a hearing on the motion — the Court may determine whether a hearing is warranted. See Rath v. Network Mktg., 944 So. 2d 485, 487 (Fla. 4th DCA 2006)[31 Fla. L. Weekly D3064a].