26 Fla. L. Weekly Supp. 264a
Online Reference: FLWSUPP 2604ZARAInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — Final summary judgment entered in favor of medical provider based on then-binding precedent regarding election of statutory fee schedules that has since been quashed by Florida Supreme Court is reversed and remanded for further proceedings consistent with supreme court decision
ALLSTATE FIRE & CASUALTY INSURANCE COMPANY, Appellant, v. LOUIS D. KLIONSKY, D.C. P.A., a/a/o Anna Zarankin, Appellee. Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County, Civil Division AY. Case No. 50-2017-AP-000077-CAXX-MB. L.T. Case No. 50-2011-SC-008889-XXXX-MB. June 5, 2018. Appeal from the County Court in and for Palm Beach County, Judge Nancy Perez. Counsel: Susan Youmans Labrit, Douglas G. Brehm, and Amy M. Wessel, Tampa, Peter Valeta, Chicago, IL, for Appellant. Frank Noska, III, Palm Beach, for Appellee.
(PER CURIAM.) Allstate Fire & Casualty Insurance Company appeals a final summary judgment that was entered pursuant to the Fourth District Court of Appeal’s then-binding decision in Orthopedic Specialists v. Allstate Insurance Company, 177 So. 3d 19 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1918a]. The Fourth District’s decision was subsequently quashed by the Florida Supreme Court’s decision in Allstate Insurance Company v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a]. We therefore agree that the final judgment must be REVERSED, and the matter is REMANDED for further proceedings consistent with the Florida Supreme Court’s decision.
Allstate has also filed a Motion for Appellate Attorney Fees pursuant to section 768.79, Florida Statutes. We are constrained to find that Allstate is entitled to its reasonable appellate attorney’s fees. See Braxton v. Grabowski, 125 So. 3d 936 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D1157b]. Accordingly, Allstate’s Motion for Appellate Attorney Fees is GRANTED, conditioned upon the trial court determining that Allstate’s offer of judgment otherwise satisfies all legal requirements. However, in determining the reasonable amount of appellate attorney’s fees, we encourage the trial court to examine the procedural timeline leading up to the filing of this appeal. The Florida Supreme Court’s decision was issued on January 26, 2017, only one day before Allstate filed its motion for rehearing. Although Allstate cannot be faulted for failing to cite to a decision that had not yet been rendered, it does not appear that Allstate ever supplemented or amended its motion for rehearing to bring the Florida Supreme Court’s decision to the trial court’s attention. The trial court did not deny the motion for rehearing until April 18, 2017, therefore Allstate had nearly three months to alert the trial court to a decision that would have obviated the need for this appeal. (FRENCH, CURLEY, and BLANC, JJ., concur.)
