26 Fla. L. Weekly Supp. 86a
Online Reference: FLWSUPP 2602SANCInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Appellant-Defendant, v. AVENTURA WELLNESS & REHAB CENTER, INC., a/a/o Carlos Sanchez, Rafaela Oliva, and Amir Rashid, Appellee-Plaintiff. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos.14-369 AP, 14-370 AP, & 14-371 AP. L.T. Case Nos. 11-15482 SP 25, 11-15483 SP 25, and 11-15745 SP 25. March 23, 2018. On appeal from a judgment rendered by the Miami-Dade County Court, Hon. Gloria Gonzalez-Meyer. Counsel: Douglas Brehm and Suzanne Youmans Labrit, Shutts & Bowen, LLP, and Peter J. Valeta, Meckler Bulger Tilson Marick & Pearson, LLP, for Appellant. Marlene S. Reiss, Marlene S. Reiss, P.A., for Appellee.
(Before SCHLESINGER, HIRSCH, & V. DIAZ, JJ.)
(PER CURIAM.) Allstate Fire and Casualty Insurance Company (“Insurer”) challenges summary judgments rendered in favor of Aventura Wellness & Rehab Center, Inc., a/a/o Carlos Sanchez, Amer Rashid, and Rafaela Oliva (“Provider”). Both appellate parties direct us to the stipulated facts submitted to the county court (Initial Br. at 1; Answer Br. at 2, 4, 5, & 11; R. at 55-59).1
Carlos Sanchez, Amer Rashid, and Rafaela Oliva suffered injuries in separate automobile accidents, received medical care from the Provider, and assigned their personal injury protection benefits to the Provider. The Provider submitted bills to the Insurer for payment, and the Insurer partially reimbursed the Provider pursuant to limitations the Legislature wrote into section 627.736(5)(a)2, Florida Statutes (2008). The Provider filed three civil actions and asserted that the Insurer’s policy provided insufficient notice for the Insurer to apply the reimbursement limitations authorized by section 627.736(5)(a)(2). See R. at 57-59. Both Litigants moved the county court for summary judgment. In the summary judgment order, the trial court observed that the Litigants stipulated the issue for review: whether the policy sufficiently elected section 627.736(5)(a)2’s methodology for limiting reimbursement to the Provider. The county court considered the following policy provision:
Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law, including, but not limited to, all fee schedules.
Id. at 672 & 680. The trial court concluded that the policy did not clearly elect the payment methodology and reasoned that a provider cannot discern whether the Insurer “elected to limit its reimbursement specifically to ‘fee schedules’ referenced in” section 627.736(5)(a)2 since subsection (5)(a)1 also refers to fee schedules. Id. at 682. The trial court granted summary judgment for the Provider and denied the Insurer’s summary judgment request. Id. at 683.
On appeal, the Provider confesses error pursuant to Allstate Ins. Co. v. Ortho. Spec., 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a].2 When an appellate party confesses error, we may reverse the final order on appeal “without expressing any opinion as to the extent of the error.” Indian Harbor Estates, Inc. v. Wagner, 148 So. 2d 757 (Fla. 1st DCA 1963). In Orthopedic Specialists, the Florida Supreme Court reviewed the same policy language at issue here, id. at 975, and concluded that the “policy provides legally sufficient notice” regarding the “election to use the permissive Medicare fee schedules identified” in section 627.736(5)(a)2, Florida Statutes (2009). Id. at 974 & 977. Because Orthopedic Specialists settles this question, we agree that the Provider correctly confesses error. We vacate the final judgment and the summary judgment and remand for further proceedings consistent with Orthopedic Specialists. By separate order, we deny the Provider’s request for section 627.428(1) appellate attorney’s fees.
VACATED and REMANDED.
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1On October 16, 2014, this court consolidated Case Nos. 14-369 AP, 14-370 AP, and 14-371 AP. We rely upon the facts from Case No. 14-369 AP.
2On February 7, 2018, we cancelled oral argument based upon the confession of error. Fla. R. App. P. 9.320.
