27 Fla. L. Weekly Supp. 414a
Online Reference: FLWSUPP 2704GOLDInsurance — Personal injury protection — Where trial court granted final judgment in favor of medical provider, finding that insurer had not properly elected use of statutory fee schedules, and, while action was pending in district court of appeal, Florida Supreme Court issued decision in Orthopedic Specialists determining that insurer’s policy language was sufficient to elect use of fee schedules, provider’s argument on remand from district court of appeal that issue of alleged misapplication of deductible remains to be litigated and prevents entry of final judgment in favor of insurer is rejected — Provider who prosecuted action to final adjudication on merits of sole issue presented to trial court abandoned any other claims it may have had and is prohibited from raising any other issue — Final summary judgment is entered in favor of insurer
GOLD COAST CHIROPRACTIC CTR PA, Plaintiff(s) / Petitioner(s) v. ALLSTATE PROPERTY & CASUALTY INS CO, Defendant(s) / Respondent(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE13005689, Division 52. May 28, 2019. Giuseppina Miranda, Judge. Counsel: Michelle J. Kane, Kane Lawyers PLLC, Delray Beach, for Plaintiff. Mayte Peña, Shutts & Bowen LLP, Miami, for Defendant.
FINAL JUDGMENT IN FAVOR OF DEFENDANTAND RELATED RULINGS
This matter came before the Court for hearing on May 10, 2019 upon Defendant’s Motion to Strike Plaintiff’s Motion for Summary Judgment Regarding Application of the Deductible and Defendant’s Motion to Vacate Final Judgment in favor of Plaintiff and for Entry of Final Judgment in favor of Defendant. Plaintiff, Gold Coast Chiropractic Center, 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 and being otherwise duly advised in the matter, finds as follows:
FACTS AND PROCEDURAL HISTORY
Plaintiff, in the instant Personal Injury Protection lawsuit, sought damages for breach of contract. On January 1, 2014 Plaintiff filed its Motion for Final Summary Judgment asserting that Allstate’s policy language did not properly elect to limit reimbursement pursuant to section 627.736(5)(a)2., Florida Statutes and the case properly proceeded to summary judgment on the “Serridge” issue on June 23, 2014. See Allstate Ins. Co. v. Orthopedic Specialists (a/a/o Kelli Serridge), 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a].
On June 24, 2014, the Court entered Final Judgment in favor of Plaintiff and against Allstate, granting Plaintiff’s Motion for Final Summary Judgment. Given the impending resolution of the “Serridge” issue by various Florida appellate courts at the time, an appeal ensued following Allstate’s July 18, 2014 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 August 15, 2017 and August 31, 2017, respectively, the Civil Appellate Division of the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, issued its Opinion and Mandate in the corresponding consolidated appellate case for this matter, Case No. CACE 14-14212, holding that the final judgment in favor of Plaintiff is reversed based upon the Florida Supreme Court’s decision in Allstate Insurance Company v. Orthopedic Specialists and that the matter is remanded for further proceedings consistent with the Opinion.
Following the issuance of the Appellate Division’s Opinion and Mandate, on October 16, 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 February 21, 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 this Court, in its proceedings following the Appellate Division’s Opinion and Mandate, must forego entering Final Judgment in favor of Allstate, claiming that there are issues presented that are not governed by Serridge, i.e., the deductible issue.
This Court considered and heard arguments on 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 as represented in Plaintiff’s Motion for Summary Judgment, resulting in Allstate’s July 18, 2014 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., at 99.
This Court’s June 24, 2014 order titled “Final Summary Judgment in favor of Plaintiff” grants Plaintiff’s Motion for Final 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 June 24, 2014 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. This 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, 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. Plaintiff abandoned any other claims it may have had and is prohibited from raising any other 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. 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 ultimately unsuccessful as decided by the Florida Supreme Court. 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 untimely and improper. 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 is entitled to a Final Judgment in its favor.
IT IS HEREBY ORDERED AND ADJUDGED as follows:
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 Summary Judgment in favor of Plaintiff entered on June 24, 2014 and recorded in the Public Record on June 25, 2014 as Instr #112370820 is hereby VACATED.
4. Plaintiff’s Motion for Final Summary Judgment is hereby DENIED.
5. Allstate’s Response and Cross-Motion for Summary Judgment is hereby GRANTED.
IT IS FURTHER ORDERED AND ADJUDGED that Final Judgment is hereby entered in favor of the Defendant in this case. Plaintiff shall take nothing by this action, and Defendant shall go hence without day. This Court reserves jurisdiction to determine Defendant’s entitlement to and amount of attorney’s fees and costs.
