27 Fla. L. Weekly Supp. 314c

Online Reference: FLWSUPP 2703EMILInsurance — Personal injury protection — Where PIP case was litigated to final judgment in favor of medical provider on sole issue of sufficiency of insurer’s policy language to elect use of statutory fee schedules for reimbursement of PIP benefits, final judgment was reversed and remanded upon issuance of the Florida Supreme Court’s opinion in Orthopedic Specialists, and provider raised issue regarding application of deductible only after appellate case was decided adversely to provider’s position, motion to strike provider’s motion for summary judgment on deductible issue is granted and summary judgment is entered in favor of insurer

GOLD COAST CHIROPRACTIC CENTER, P.A. a/a/o Abdios Emilcar, Plaintiff, v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502013SC002889XXXXSB. May 14, 2019. Reginald Corlew, Judge. Counsel: Thomas E. Flanagan, III, Kane Lawyers PLLC, Delray Beach, for Plaintiff. Mayte Peña, Shutts & Bowen, LLP, Miami, for Defendant.

ORDER GRANTING ALLSTATE’S MOTION TO STRIKEPLAINTIFF’S MOTION FOR SUMMARY JUDGMENTREGARDING APPLICATION OF THE DEDUCTIBLEAND GRANTING ALLSTATE’S MOTION TO VACATEFINAL JUDGMENT AND ENTERING FINAL JUDGMENTIN FAVOR OF ALLSTATE

This matter came before the Court upon Allstate’s Motion to Strike Plaintiff’s Motion for Summary Judgment Regarding Application of the Deductible and Allstate’s Motion to Vacate Final Judgment in favor of Plaintiff and for Entry of Final Judgment in favor of Allstate. Plaintiff, Gold Coast Chiropractic Center, P.A., was represented by Thomas E. Flanagan, III, Esquire, of Kane Lawyers, PLLC, and Defendant, Allstate Fire 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 7th day of May, 2019, 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 January 28, 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 February 2, 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. Three days later, on February 5, 2016, Allstate filed its timely Motion for Rehearing. On March 9, 2016, this Court denied Allstate’s Motion for Rehearing. Given the district conflict and impending resolution of the “Serridge” issue by the Florida Supreme Court, an appeal ensued following Allstate’s April 6, 2016 filing of its Notice of Appeal.

While this action was pending appeal, 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 May 15, 2017 and June 5, 2017, respectively, the Civil Appellate Division of the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County Florida issued its Opinion and Mandate in the corresponding consolidated appellate case for this matter, Case No. 50-2016-AP-900078-CAXX-MB, holding that the final judgment is reversed and remanded for further proceedings consistent with the Florida Supreme Court’s decision in Allstate Insurance Company v. Orthopedic Specialists. Following the issuance of the Appellate Division’s Opinion and Mandate, on October 9, 2018 Allstate filed its Motion to Vacate Final Judgment in favor of Plaintiff and Motion for Entry of Final Judgment in favor of Allstate.

On January 5, 2019, Plaintiff filed its Motion for Partial Summary Judgment as to Liability for the Deductible Issue and Request to Preserve Remaining Funds seeking to litigate the issue of misapplication of the deductible while this action is on remand before this Court. On March 4, 2019, Allstate filed its Motion to Strike Plaintiff’s Motion for Summary Judgment Regarding Application of the Deductible.

Conclusions of Law

Plaintiff, through its filing of its Motion for Summary Judgment regarding application of the deductible and argument presented by its Counsel, contends that while the Court must vacate the Final Judgment entered in favor of Plaintiff consistent with the Appellate Division’s Opinion and Mandate, 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 presented that are not governed by Serridge, i.e., the deductible issue.

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 fact¹, resulting in Allstate’s April 6, 2016 Notice of Appeal from the final order.

Florida law is clear that only final orders resolving all of several interrelated claims which involve the same transaction and parties are appealable as a final order. See Palm Beach Newspapers, Inc. v. Walker, 506 So. 2d 39, 40 (Fla. 4th DCA 1987) (citing S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97 (Fla. 1974)). Only when the court has disposed of the entire controversy in question is a final judgment deemed to be rendered. See Del Castillo v. Balor Pharmacy, Inc., 512 So. 2d 315, 318-19 (Fla. 3d DCA 1987); See also East Avenue, LLC v. Insignia Bank, 136 So. 3d 659, 665 (Fla. 2d DCA 2014) [39 Fla. L. Weekly D179a]. Generally, the test employed to determine finality of an order, judgment or decree, is whether the order in question constitutes an end to the judicial labor in the cause. S.L.T. Warehouse Co., 304 So. 2d at 99.

This Court’s February 2, 2016 order titled “Final Judgment for Plaintiff” grants Plaintiff’s Motion for Final Summary Judgment, denies Allstate’s Response and Cross-Motion for Summary Judgment, enters Final Judgment in favor of the Plaintiff, and concludes with awarding the Plaintiff damages and finding that the Plaintiff, as the prevailing party, is entitled to its reasonable attorney’s fees, disposing of the entire case. By its own title and language, the February 2, 2016 order constitutes an end to the judicial labor in the instant cause constituting a final order.

It is well settled that a judgment attains the degree of finality necessary to support an appeal when it adjudicates the merits of the cause and disposes of the action between the parties, leaving no judicial labor to be done except the execution of the judgment. Gore v. Hansen, 59 So. 2d 538 (Fla. 1952). Not only was appeal taken on the Final Judgment entered in this matter, but the appeal was maintained and concluded without issue. It is clear from the filings that throughout the course of the appeal, the parties and the Court understood this matter to have been appealed upon final order. Allstate’s April 6, 2016 Notice of Appeal specifically states that the nature of the appeal is from final order. On June 29, 2016, the Appellate Court issued an Order consolidating the corresponding appeal of this case with the appeal of other cases addressing the Serridge Issue and staying the appeal pending resolution of Allstate Insurance Company v. Orthopedic Specialist before the Florida Supreme Court, accepting the appeal as timely and acknowledging the issue currently pending on appeal. Thereafter, the case advanced through the appellate process, ultimately resulting in the issuance of an Opinion and Mandate following the Florida Supreme Court’s opinion in Orthopedic Specialists finding in favor of Allstate on the Serridge Issue, requiring entry of Final Judgment in favor of Allstate. Allstate Ins. Co. v. Orthopedic Specialists, 212 So. 3d 973, 974 (Fla. 2017) [42 Fla. L. Weekly S38a], reh’g denied, No. SC15-2298, 2017 WL 1130950 (Fla. Mar. 27, 2017).

Plaintiff prosecuted the instant cause to final adjudication on the merits resulting in entry of Final Judgment in its favor on the sole issue presented to the Court and participated in the appeal from the final order. Plaintiff is prohibited from raising any issue 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 when it sought and obtained a Final Judgment in its favor. 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).

The Plaintiff’s position in this cause on the sole issue presented — Serridge — was unsuccessful at the Florida Supreme Court in Allstate Insurance Company v. Orthopedic Specialists. 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).

Allstate’s Motion to Vacate Final Judgment in favor of Plaintiff and for Entry of Final Judgment in favor of Allstate is properly before this Court consistent with the Appellate Division’s Opinion and Mandate requiring further proceedings consistent with Orthopedic Specialists. Plaintiff’s post-judgment and post-appellate filing of its Motion for Summary Judgment Regarding Application of the Deductible — an issue that was not raised before the Court nor addressed by the Court prior to entry of Final Judgment on the Serridge Issue — is improper and cannot preclude entry of Final Judgment in favor of Allstate in this matter. This cause was adjudicated on the merits and appealed on the sole issue presented — Serridge — and today must be decided accordingly. Pursuant to Allstate Insurance Company v. Orthopedic Specialists, 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 Motion for Summary Judgment Regarding Application of the Deductible is hereby GRANTED; Plaintiff’s Motion for Partial Summary Judgment as to Liability for the Deductible Issue and Request to Preserve Remaining Funds is hereby STRICKEN;

2. Allstate’s Motion to Vacate Final Judgment in favor of Plaintiff and for Entry of Final Judgment in favor of Allstate is hereby GRANTED;

3. The Final Judgment in favor of Plaintiff entered on February 2, 2016 is hereby VACATED;

4. Plaintiff’s Motion for Final Summary Judgment is hereby DENIED; and

5. Allstate’s Response and Cross-Motion for Summary Judgment is hereby GRANTED;

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.

__________________

¹See Final Judgment for Plaintiff entered on February 2, 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. . .”