26 Fla. L. Weekly Supp. 597a

Online Reference: FLWSUPP 2607BEECInsurance — Personal injury protection — Voluntary dismissal — Striking — Under rule 1.540(b), trial court has jurisdiction to consider and rule on insurer’s motion to strike medical provider’s notice of voluntary dismissal without prejudice — Notice of voluntary dismissal filed after court granted provider’s motion for summary judgment is void — Because motion to strike attacks void dismissal, fact that motion was filed more than one year after filing of notice of voluntary dismissal is of no consequence — Statutory fee schedules — Clear and unambiguous election by insurer — Insurer’s motion for rehearing is granted based on Florida Supreme Court decision in Orthopedic Specialists — Where provider previously represented to court that case involved pure issue of law regarding whether policy provided sufficient notice of intent to limit reimbursement to statutory fee schedules, provider is estopped from now raising other issues to avoid entry of final judgment in favor of insurer

B GREENWALD MEDICAL P.A. ROBERT BEECH, Plaintiff/Petitioner v. ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY, Defendant/Respondents. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-2012-SC-002403-XXXX-SB. August 23, 2018. Reginald R. Corlew, Judge. Counsel: Michelle Kane, Kane Lawyers, PLLC, 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 ENTERING FINALJUDGMENT 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. Plaintiff, B. Greenwald Medical, P.A., was represented by Michelle J. Kane, Esquire, of Kane Lawyers, PLLC, and Defendant, Allstate Property and Casualty Insurance Company, was represented by Mayte Peña, Esquire, of Shutts & Bowen, LLP. The Court, having reviewed the court file, considered applicable law, heard argument of the parties on the 9th day of August, 2018, 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 did not 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 May 12, 2015, granted Allstate’s Cross-Motion for Summary Judgment, denied Plaintiff’s Motion for Summary Judgment and entered Final Judgment in favor of Allstate, based upon Allstate Fire and Casualty Insurance Company v. Stand-Up MRI of Tallahassee, P.A., 188 So. 3d 1 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D693b]. The following day, May 13, 2015, the Plaintiff filed its Motion for Rehearing. On October 13, 2015, the Court entered an Order Granting Plaintiff’s Motion for Rehearing. On May 19, 2016, rehearing proceeded on the parties’ Cross-Motions for Summary Judgment on the Serridge issue. Based upon then-binding authority from the Fourth District Court of Appeal in Orthopedic Specialists v. Allstate Insurance Company, this Court entered Final Judgment in favor of Plaintiff on May 19, 2016. 177 So. 3d 19 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1918a]. The Final Judgment for Plaintiff provided that this matter involves a pure question of law and that there are no material disputed issues of fact. Six days later, on May 25, 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 Insurance Company 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. 1st DCA Mar. 18, 2015) [40 Fla. L. Weekly D693b]; Allstate Indemnity Co. v. Markley Chiropractic & Acupuncture, 226 So.3d 262 (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].

After our Florida Supreme Court issued the Serridge decision, on April 6, 2017, Plaintiff filed its Notice of Voluntary Dismissal. On May 23, 2018, Allstate filed its Motion to Strike Plaintiff’s Notice of Voluntary Dismissal without Prejudice and on May 30, 2018, 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.

I. ALLSTATE’S MOTION TO STRIKE PLAINTIFF’S VOLUNTARY DISMISSAL WITHOUT PREJUDICE

a. Jurisdiction to Hear Motion to Strike Notice of Voluntary Dismissal

Initially, the Court must address the filing by Plaintiff of a Voluntary Dismissal without Prejudice. Plaintiff argued that the Notice of Voluntary Dismissal without Prejudice divests the court of its jurisdiction to hear Allstate’s Motion to Strike the Notice of Voluntary Dismissal without Prejudice. While it is true that the effect of a voluntary dismissal prior to summary judgment, submission of the case to the jury or the court in a non-jury trial, terminates the litigation and instantaneously divests the court of its jurisdiction to enter further orders,¹ Florida Rule of Civil Procedure 1.540(b) allows a court to relieve a party from a “final judgment, decree, order or proceeding” based upon any of five grounds set out in the rule. Florida Rule of Civil Procedure 1.540(b)(4) specifically provides the court with jurisdiction to relieve a party from a judgment, decree or proceeding that is void.² See also Wells Fargo Bank, NA v. Haecherl, 56 So. 3d 892, 894 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D567a] (“Rule 1.540(b) allows a court to relieve a party from a ‘final judgment, decree, order or proceeding’ based upon any of the five grounds set out in the rule.”). Allstate seeks an order striking the voluntary dismissal on the basis that the dismissal is a legally nullity and, therefore, void. Under Florida law, a notice of voluntary dismissal constitutes a “proceeding” within the meaning of the Rule 1.540. Id. (citing Miller v. Fortune Ins. Co., 484 So. 2d 1221, 1224 (Fla. 1986). As such, this Court has jurisdiction to consider and rule upon Allstate’s Motion to Strike the Notice of Voluntary Dismissal without Prejudice.

b. Plaintiff’s 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. Pasta, 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.; see also Gelinas v. Forest River, Inc., 931 So. 2d 970, 973 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1449b].

Although Plaintiff’s Motion for Summary Judgment was granted and Allstate’s was denied, Plaintiff’s right to dismiss was affected under the language of the Rule. The Rule’s plain text 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 plaintiff’s 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.

c. Timeliness of Allstate’s Motion to Strike Voluntary Dismissal

The Plaintiff further argues that the Court is without jurisdiction to consider and rule upon Allstate’s Motion to Strike the Notice of Voluntary Dismissal without Prejudice because more than one (1) year has elapsed between the filing of the Voluntary Dismissal and Allstate’s Motion to Strike Voluntary Dismissal, relying upon language in Florida Rule of Civil Procedure 1.540(b) that reads “[t]he motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken.”³ The Plaintiff misconstrues Rule 1.540(b). The rule’s plain text states that the one year time limitation is only applicable to motions for relief based upon reasons under subsections one, two and three of Rule 1.540(b). Allstate’s Motion to Strike the Voluntary Dismissal is based upon subsection four (4) of Rule 1.540(b) — that the voluntary dismissal is void. The one-year time limitation under Rule 1.540(b) does not apply to Allstate’s Motion to Strike the Voluntary Dismissal because it is a legal nullity. See M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So. 2d 1079 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2277a] (“[a]lthough rule 1.540(b) imposes a one-year limitations period for filing certain motions to vacate, parties seeking relief from a judgment that is void are subject only to a ‘reasonable time’ requirement”) (emphasis supplied).

Plaintiff also argues that Allstate’s Motion to Strike Voluntary Dismissal without Prejudice filed more than one year after the filing of Plaintiff’s Voluntary Dismissal was not filed within a “reasonable time” as required by Rule 1.540(b) and must be denied. It is well-established in Florida that the “reasonable time” requirement of the rule means no time limit when the judgment attacked is void — as is the case here. See M.L. Builders, Inc., 769 So. 2d at 1082 (Analyzing Rule 1.540(b) in comparison to Federal Rule 60 and Federal case law interpreting it, holding that a void judgment may be collaterally attacked at any time and because the void judgment sustaining collateral attack would have to be given effect in a subsequent motion for relief to set aside the void judgment, the “reasonable time” limitation must generally mean no time limitation). Further, the Florida Supreme Court has held that “a void judgment is a nullity. . . and is subject to collateral attack and may be stricken at any time. . . [t]he passage of time cannot make valid that which has always been void. . .” Id. (quoting Ramagli Realty Co. v. Craver, 121 So. 2d 648, 654 (Fla. 1960) (emphasis supplied). Here, because Allstate’s Motion to Strike Voluntary Dismissal attacks a void dismissal, the filing of the motion more than one year after the dismissal is of no consequence.

To accept Plaintiff’s arguments and deny Allstate’s Motion to Strike the Voluntary Dismissal without Prejudice would result in validating the void voluntary dismissal filed by the Plaintiff. Florida law is contrary to Plaintiff’s position. Florida law is abundantly clear that when the matter concerns that of a void judgment, or in this case — a void voluntary dismissal, the reasonable time requirement of Rule 1.540 must be construed to mean no time limit at all to avoid giving effect to a judgment that is legally null and void from the beginning. Because the Plaintiff was without authority to file a voluntary dismissal without prejudice after entry of summary judgment in its favor, the voluntary dismissal was void at the time of its filing and is subject to collateral attack at any time. For these reasons, the Court has jurisdiction to consider and rule upon Allstate’s Motion to Strike the Notice of Voluntary Dismissal without Prejudice filed more than one (1) year after the filing of the Voluntary Dismissal.

II. 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 Insurance Company 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 time 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 contends that although the Court must grant rehearing, it must forego entering Final Judgment in favor of Allstate claiming for the first time in the course of this litigation that there are issues present that are not governed by Serridge and that Allstate’s summary judgment evidence is inadmissible to support summary judgment in its favor. This Court considered and heard arguments on both, Plaintiff’s Motion for Summary Judgment and Allstate’s Cross-Motion for Summary Judgment, on the sole issue presented — Serridge. The Court not only denied Allstate’s Cross-Motion for Summary Judgment and granted Plaintiff’s Motion for Summary Judgment, but also entered Final Judgment in favor of Plaintiff on the basis that the matter involved a pure question of law and that there were no issues of material fact.⁴ Plaintiff is prohibited from raising any issue and challenging Allstate’s summary judgment evidence in contravention of its representations to the Court that this matter involved a pure issue of law and that there were no issues of material fact in dispute. Plaintiff is estopped from raising or asserting any issues other than Serridge in an attempt to avoid entry of Final Judgment in favor of Allstate. See Bailey v. State Farm Mutual Automobile Ins. Co., 789 So. 2d 1181, 1183 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D1739b] (“equitable estoppel precludes a person from maintaining a position inconsistent with another position. . . which was asserted at a previous time”). See also Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069, 1070 (Fla. 3d DCA 1977) (holding that under Florida law, a party who opposes summary judgment will not be permitted to alter the position of his or her previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment); see also, e.g., Noble v. Martin Memorial Hosp’ Ass’n, Inc., 710 So. 2d 567, 568 (Fla. 4th DCA 1997) [23 Fla. L. Weekly D58a] (holding a party should not be permitted to alter its position or amend its pleadings for the sole purpose of defeating an entered summary judgment).

Plaintiff prosecuted the instant cause to final adjudication on the merits on the sole issues presented to the Court. 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 or maintain an inconsistent position to avoid application of Serridge. 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; and

3. The Final Judgment entered on May 19, 2016 is hereby VACATED.

IT IS FURTHER ORDERED AND ADJUDGED:

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.

__________________

¹See Randle-E. Ambulance Serv., Inc. v. Pasta, 360 So. 2d 68 (Fla. 1978).

²See Fla. R. Civ. P. 1.540(b) — on motion and upon such terms as are just, the court may relieve a party of a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1)mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or hearing; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.

³See Plaintiff’s Memorandum of Law in Opposition to Allstate’s Motion to Strike Voluntary Dismissal and Renewed Motion for Rehearing on Summary Judgment filed August 7, 2018.

⁴See Final Judgment for Plaintiff entered on May 19, 2016 at the first paragraph stating “and the Court being duly advised that this matter involves a pure question of law and that there are no material disputed issues of fact, finds and decides as follows. . .”