25 Fla. L. Weekly Supp. 658a
Online Reference: FLWSUPP 2507AHMAInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — County court granted summary judgment in favor of medical provider determining that insurer’s policy language did not properly elect reimbursement pursuant to statutory fee schedules at time when district court conflict on issue was pending resolution by Florida Supreme Court, and during pendency of insurer’s motion for rehearing in county court supreme court ruled in favor of insurer, after which provider filed notice of voluntary dismissal without prejudice and insurer filed renewed motion for rehearing and motion to strike voluntary dismissal — Notice of voluntary dismissal filed after entry of summary judgment is nullity and is stricken — Renewed motion for rehearing is granted in light of supreme court decision and final judgment is entered in favor of insurer
SPINE & ORTHOPEDIC CENTER, P.A., as assignee of Mahmoud Ahmad, Plaintiff, v. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502013SC011494XXXXMB. August 28, 2017. Frank S. Castor, Judge. Counsel: Stephen D. Deitsch, Deitsch & Wright, P.A., Lake Worth, for Plaintiff. Mayte Peña, Shutts & Bowen, LLP, Miami, for Defendant.
ORDER GRANTING ALLSTATE’S MOTION TO STRIKEPLAINTIFF’S VOLUNTARY DISMISSAL WITHOUTPREJUDICE, GRANTING ALLSTATE’S RENEWEDMOTION FOR REHEARING, AND ENTERINGFINAL JUDGMENT IN FAVOR OF ALLSTATE
This matter came before the Court upon Allstate’s Motion to Strike Plaintiff’s Voluntary Dismissal without Prejudice and Allstate’s Renewed Motion for Rehearing of this Court’s Final Judgment in favor of Plaintiff and for Entry of Final Judgment in favor of Allstate. The Court, having reviewed the court file, considered applicable law, and being otherwise duly advised in the matter, finds as follows:Facts and Procedural History The Plaintiff, in the instant Personal Injury Protection lawsuit, sought damages for breach of contract and asserted that Allstate’s policy language didnot properly elect to limit reimbursement pursuant to section 627.736(5)(a)2., Florida Statutes. The case properly proceeded to summary judgment on the “Serridge” issue. See Allstate Ins. Co. v. Orthopedic Specialists (a/a/o Kelli Serridge), 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a].
The Court heard the parties’ cross motions for summary judgment on July 28, 2016, granted Plaintiff’s Motion for Summary Judgment and denied Defendant’s Cross Motion for Summary Judgment, based upon Orthopedic Specialists v. Allstate Insurance Company, 177 So. 3d 19 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1918a]. On July 28, 2016, the Court also entered a Final Judgment in favor of Plaintiff. Five days later, on August 2, 2016, Allstate filed its timely Motion for Rehearing.
This Court was aware of the district conflict, impending resolution of the issue by the Florida Supreme Court, and stays of all Serridge appeals in many circuit appellate division. In the interest of judicial economy and to preserve the parties’ resources and to toll the time for appeals, the Court deferred ruling on Allstate’s Motion for Rehearing. While Allstate’s Motion for Rehearing was pending, on January 26, 2017, the Florida Supreme Court decided Allstate Ins. Co. v. Orthopedic Specialists (a/a/o Kelli Serridge), 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a], rehearing denied 2017 WL 1130950 (Mar. 27, 2017), in favor of Allstate, upholding the decisions of the First, Second, and Third District Courts of Appeal, and holding that “Allstate’s policy provided legally sufficient notice of Allstate’s election to use the permissive Medicare fee schedules identified in section 627.736(5)(a)2. to limit reimbursements.” See Allstate Fire and Cas. Ins. Co. v. Stand-Up MRI of Tallahassee, 188 So. 3d 1 (Fla. 1DCA Mar. 18, 2015) [40 Fla. L. Weekly D693b]; Allstate Indemnity Co. v. Markley Chiropractic & Acupuncture, __So. 3d __, 2016 WL 1238533 (Fla. 2d DCA Mar. 30, 2016) [41 Fla. L. Weekly D793b]; and Florida Wellness & Rehabilitation v. Allstate Fire & Cas. Ins. Co., 201 So. 3d 169 (Fla. 3d DCA July 13, 2016) [41 Fla. L. Weekly D1619c]. On July 13, 2017, Plaintiff filed its Notice of Voluntary Dismissal without Prejudice.
After our Florida Supreme Court issued the Serridge decision, Allstate filed its “Renewed Motion for Rehearing” fully incorporating its Motion for Rehearing and requesting entry of Final Judgment in favor of Allstate, given the binding Florida Supreme Court opinion.
Allstate’s Motion to Strike Plaintiff’s VoluntaryDismissal Without Prejudice
Initially, the Court must address the filing by Plaintiff of a Voluntary Dismissal without Prejudice. The law is well-settled that the filing of a voluntary dismissal, after the commencement of a summary judgment hearing or submission of a case to the decision maker (retirement of the jury or the court), is a legal nullity. See Gelinas v. Forest River, Inc., 931 So. 2d 970, 973 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1449b]; Stonely v. Moore, 851 So. 2d 905, 906 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1875a].
Florida Rule of Civil Procedure Rule 1.420(a) provides plaintiffs a broad right to dismiss their claims without prejudice up to a certain point in the progression of a lawsuit. In relevant part, the Rule provides:
. . . an action, a claim, or any part of an action or claim may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision. . .
The opening of this phrase is straightforward. Where a summary judgment hearing has not yet been held, a plaintiff may voluntarily dismiss a lawsuit without prejudice without seeking leave of the trial court by simply serving notice of dismissal. Once this is done, the trial court no longer has jurisdiction and “any further orders are null and void.” Kelly v. Colston, 977 So. 2d 692, 694 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D769c] (“The effect of a voluntary dismissal prior to submission is immediate, final, and irreversible. It terminates the litigation and instantaneously divests the court of its jurisdiction to enter further orders.”) (citing Randle-E. Ambulance Serv., Inc. v. Vasta, 360 So. 2d 68 (Fla. 1978)). Where a hearing on summary judgment has been held, but the trial court has not issued its ruling, however, voluntary dismissal without prejudice ceases, at least temporarily, to be an option. Stonely v. Moore, 851 So. 2d 905, 906 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1875a] (“In the present case, the notice was not filed until after the hearing on the motion for summary judgment. At that point, the plaintiffs could not dismiss the action by filing a notice; a dismissal could be accomplished only by stipulation of the parties or by order of the court.”). A notice of voluntary dismissal filed after the hearing on summary judgment is, under most circumstances, a nullity. Id
The plain text of Rule 1.420(a), prohibits dismissals after the commencement of a legal process that will be dispositive of the case, i.e., summary judgment, retirement of the jury in a case tried before a jury, or before submission of a nonjury case to the court for decision. When the plaintiff’s motion for summary judgment is granted, as was the case here, a final disposition of the case has occurred. If plaintiff’s summary judgment would have been denied, the case would have proceeded to trial. Thus, a plaintiffs ability to dismiss without prejudice would have been “revived” when its summary judgment was denied until “submission of a nonjury case to the court for decision,” when the ability to dismiss is again lost. Accordingly, the text of the rule means that the denial of summary judgment revives the ability to dismiss without prejudice only where such denial triggers the need for further proceedings such that the case requires submission of further evidence and argument, which was not the case herein. Where, as here, Allstate was denied summary judgment but the plaintiff was granted summary judgment such that, whether or not final judgment has been entered, nothing is left for the trial court to determine as to the merits of the lawsuit, there is no further submission of the case to the court. It was already “submitted” and decided in favor of the plaintiff. Plaintiff litigated the instant cause to full and final adjudication on the merits. Therefore, Plaintiff was without authority to voluntarily dismiss.
Allstate’s Renewed Motion for Rehearing
Allstate’s Motion for Rehearing and Renewed Motion for Rehearing both addressed the issue decided on January 26, 2017 by the Florida Supreme Court in Allstate Ins. Co. v. Orthopedic Specialists (a/a/o Kelli Serridge). As previously noted, this Court was aware of the district conflict, impending resolution of the issue by the Florida Supreme Court, and stays of Serridge appeals in various circuit appellate divisions. In the interest of judicial economy, to preserve the parties’ resources, and to toll the lime for appeals, the Court deferred ruling on Allstate’s Motion for Rehearing. It is well established that “an appellate opinion explaining and applying the meaning of the law is applicable to all cases in progress and not yet final when it was released.” See Rivera v. Publix Super Markets, Inc. 929 So. 2d 1184, 1185 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1562f]; Santana v. Fl. Dep’t of Fin. Serv., 61 So. 3d 1262 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D1126b] (discussing that change in decisional law applies to cases that are in the pipeline at the time of the appellate ruling, i.e., all cases pending on appeal or otherwise not yet final). While Allstate’s Motion for Rehearing was pending, the Florida Supreme Court decided Serridge in favor of Allstate. The parties and this Court specifically intended to wait for the Florida Supreme Court to resolve the issue. Pursuant to our binding Supreme Court’s opinion, this Court must grant Allstate’s Renewed Motion for Rehearing, which addressed the same issues as Allstate’s Motion for Rehearing.
Plaintiff prosecuted the instant cause to final adjudication on the merits. This court heard summary judgment cross-motions on the issue of Serridge and entered Final Judgment. Allstate’s Motion for Rehearing tolled the time for appeal and was still pending at the time Serridge was decided and when Allstate filed its Renewed Motion for Rehearing. Under no theory of law or legal authority presented to this Court may Plaintiff “take back” years of litigation and walk away from the case after an adverse ruling by our supreme court. The Plaintiff’s position was unsuccessful at the Florida Supreme Court, and pursuant to Serridge, defendant Allstate is entitled to a Final Judgment in its favor.
IT IS HEREBY ORDERED AND ADJUDGED:
1.
Allstate’s Motion to Strike Plaintiff’s Voluntary Dismissal Without Prejudice is hereby GRANTED; Plaintiff’s Notice of Voluntary Dismissal Without Prejudice is hereby STRICKEN;
2.
Allstate’s Renewed Motion for Rehearing is hereby GRANTED;
3.
This Court’s Order entered July 28, 2016 Granting Plaintiff’s Motion for Summary Judgment and Denying Allstate’s Response and Cross-Motion for Summary Judgment is hereby VACATED;
4.
Final Judgment in favor of Plaintiff entered July 28, 2016 is hereby VACATED;
5.
Plaintiff’s Motion for Summary Judgment is hereby DENIED;
6.
Allstate’s Response and Cross-Motion for Summary Judgment is hereby GRANTED; and
IT IS FURTHER ORDERED AND ADJUDED:
That Final Judgment is entered in favor of Allstate in this case. Plaintiff shall take nothing by this action, and Defendant shall go hence without day. This Court reserves jurisdiction to determine Allstate’s entitlement to and amount of attorney’s fees and costs.
