27 Fla. L. Weekly Supp. 831b
Online Reference: FLWSUPP 2709ZHERInsurance — Personal injury protection — Where parties stipulated that sole legal issue to be resolved in case is sufficiency of insurer’s policy language to elect use of statutory fee schedules for reimbursement of PIP benefits, which issue has been resolved by Florida Supreme Court decision in Orthopedic Specialists, and medical provider raised unpled deductible issue only after appellate case was decided adversely to provider’s position, motion to strike or exclude unpled issues is granted — Final judgment is entered in favor of insurer
JOE REHAB & DIAGNOSTIC, INC., a/a/o Zurma Hernandez, Plaintiff, v. ALLSTATE FIRE & CASUALTY CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2012-003013-SP-25, Section CG03. October 23, 2019. Patricia Marino Pedraza, Judge. Counsel: Thayer Musa, Law Office of Thayer Musa; Jose Dapena, Law Offices of Jose A. Dapena, P.A.; and Todd Herman, Todd J. Herman, P.A., for Plaintiff. Manuel Negron and Raul L. Tano, Shutts & Bowen, LLP, Miami, for Defendant.
ORDER GRANTING ALLSTATE’S MOTION IN LIMINETO EXCLUDE/STRIKE ISSUES NOT PLED BY THEPLAINTIFF IN ITS COMPLAINT AND GRANTINGALLSTATE’S MOTION FOR SUMMARY JUDGMENTAND ENTRY OF FINAL JUDGMENT
THIS CAUSE came before the Court on Allstate Fire & Casualty Insurance Company’s (“Allstate”) Motion in Limine to Exclude/Strike Issues not Pled, Improperly Pled and/or Waived by the Plaintiff (“Motion to Exclude/Strike”), and Allstate’s Motion for Summary Judgment and for Entry of Final Judgment, and after hearing argument of counsel, reviewing the pleadings filed with the Court, and reviewing all applicable case law, the Court makes the following findings of fact and conclusions of law:Findings of Facts
On or about February 2012, Plaintiff filed a single-count Complaint against Allstate seeking payment for PIP benefits for treatment rendered to Allstate’s insured. The Complaint demanded judgment against Allstate in the amount of $2,067.99, an amount based upon Plaintiff’s claim that it was entitled to 80% of its charges. Plaintiff did not plead any alternative theories of recovery and did not demand damages of any other amounts. Allstate answered the Complaint, and both parties proceeded to file summary judgment motions on the sole issue of whether Allstate’s policy language permitted it to limit reimbursement of Plaintiff’s bills to the permissive fee schedules in Section 627.736(5)(a)(2)(a-f), Florida Statutes (“the fee schedule election issue”).
On July 30, 2012, the parties executed and filed a Joint Stipulation of Facts (“the Stipulation”). The Stipulation asserted that “[t]he parties agree that the sole legal issue to be resolved on summary judgment in this case is whether Allstate’s policy language permits it to limit reimbursement of the bills for the dates of service at issue pursuant to the schedule of maximum charges described in §627.736(5)(a)(2)(a-f).” Following execution of the Stipulation and filing of motions for summary judgment on the sole issue, the case lingered on this Court’s docket for approximately four years without any substantive activity.
On January 26, 2017, the Florida Supreme Court held that Allstate’s policy language provides notice of the insurer’s intent to utilize the fee schedules at Section 627.736(5)(a)(2)f, see Allstate Insurance Company a/a/o Kelli Serridge v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a] (“Serridge”), thus resolving the sole issue pled by Plaintiff and stipulated to by the parties. Rather than dismiss, Plaintiff, for the first time in this seven-year old case, asserted that Allstate breached the contract by misapplying the insured’s deductible. Allstate responded by filing its Motion to Exclude/Strike.Legal Standard and Conclusions of Law
I. The Joint Stipulation
Joint Stipulations are generally favored, and “absent a showing of fraud, misrepresentation or mistake, stipulations are binding on the parties who enter them and [on] the courts.” Marion County v. Dep’t of Juvenile Justice, 215 So. 3d 621, 626-27 (Fla. 1st DCA 2017) [42 Fla. L. Weekly D765d] (citing Seminole Elec. Co-op, Inc. v. Dep’t of Envtl. Prot., 985 So. 2d 615, 621 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1560a]). Florida law is clear — a stipulation that limits the issues to be tried “amounts to a binding waiver and elimination of all issues not included” (emphasis supplied). Broche v. Cohn, 987 So. 2d 124, 127 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1741a] (citing Esch v. Forster, 168 So. 229, 231 (Fla. 1936)); see also State ex. Rel. Alfred E. Destin Co. v. Heffernan, 47 So. 2d 15, 17 (Fla. 1950). Courts are equally bound to strictly enforce Stipulations, like the one at issue in the instant case, which limit the legal issues to be decided by the court. See S&M Transp., Inc. v. Northland Ins. Co., 208 So. 3d 230, 233 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D2696a] (enforcing elimination of legal issue notwithstanding that the law on same changed after the parties entered into the Stipulation); Central Square Tarragon LLC v. Great Divide Ins. Co., 82 So. 3d 911, 914 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1467a] (citing Broche v. Cohn, 987 So. 2d 124, 127 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1741a]); see also Lotspeich Co. v. Neogard Corp., 416 So. 2d 1163, 1165 (Fla. 3d DCA 1982); Gunn Plumbing, Inc. v. Dania Bank, 252 So. 2d 1 (Fla. 1971)). “It is the policy of the law to encourage and uphold stipulations in order to minimize litigation and expedite the resolution of disputes.” Broche v. Cohn, 987 So. 2d at 127 (quoting Spitzer v. Bartlett Bros. Roofing, 437 So. 2d 758, 760 (Fla. 1st DCA 1983)).
This Court finds that the Joint Stipulation is clear, unambiguous, and binding upon the parties. The parties entered into a Joint Stipulation of Facts stating that the sole legal issue to be resolved by the Court on summary judgment in this case is the fee schedule election issue, which was definitively resolved in Allstate’s favor in Serridge. Under Florida law, joint stipulations like the one in this case bind the parties and the court, limit the issues presented to the court for resolution, are a binding waiver and elimination of all issues not included therein, and are to be enforced by the courts.
II. Allstate’s Motion to Exclude/Strike
Florida law is clear that a party is bound by the issues as framed in the pleadings, and the Complaint must be pled with sufficient particularity to permit a defendant to prepare its defense. See Assad v. Mendell, 550 So. 2d 52, 53 (Fla. 3d DCA 1989). The Florida Supreme Court has held that where a claim is not pled with sufficient particularity for the opposing party to prepare a defense, the plaintiff is precluded from recovery on the unpled claim. Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A., 537 So. 2d 561 (Fla. 1988).
Relying on Arky, Freed, the Third District Court of Appeal has consistently held that parties are precluded from recovery on unpled claims tried without the consent of the parties. See Sunbeam Television Corp. v. Mitzel, 83 So. 3d 865, 875 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D183a]; Bloom v. Dorta-Duque, 743 So. 2d 1202, 1203 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D2532a]; Robbins v. Newhall, 692 So. 2d 947, 949 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D945b]. Many other Florida courts have held that it is error for a trial court to allow a plaintiff to argue an unpled theory or cause of action at trial. See E.I. Du Pont De Nemours & Co. v. Desarrollo Indus. Bioacuatico S.A., 857 So. 2d 925, 930 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2171a]; see also Straub v. Muir-Villas Homeowners Ass’n, Inc., 128 So. 3d 885, 890 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D2655a]; see also Cioffe v. Morris, 676 F.2d 539, 543 n. 8 (11th Cir. 1982).
The pleadings and the record before this Court demonstrate that this case involves solely the issue decided by the Florida Supreme Court in Serridge. It was not until after the Florida Supreme Court decided Serridge in favor of Allstate that Plaintiff attempted to inject the deductible issue into this litigation. Plaintiff now seeks for the Court to allow it to take a position which is diametrically opposed to the position it took in its original Complaint and for seven years of litigation. Florida law does not permit this. See Noble v. Martin Memorial Hosp. Ass’n, Inc., 710 So. 2d 567 (Fla. 4th DCA 1997) [23 Fla. L. Weekly D58a]; Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977); Bailey v. State Farm Mut. Auto. Ins. Co., 789 So. 2d 1181 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D1739b].
This Court rejects Plaintiff’s reliance on Digital Medical Diagnostics v. United Automobile Ins. Co., 958 So. 2d 505 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D1392a]. That case stands for the limited proposition that the application of the deductible is not an affirmative defense which must be pled by a defendant. It does not say, as Plaintiff suggests, that a Plaintiff is not required to allege that an insurer misapplied the insurer’s deductible or that Plaintiff need not specify the damages and issues it seeks to litigate. “When a Plaintiff sues a defendant it is incumbent upon him to correctly state his basis for relief and then adequately prove it. Plaintiff’s failure to do either of these warrants a judgment against the plaintiff and for the defendant. If a plaintiff is unsure of the correct legal basis for relief, he may plead in the alternative.” Quality Type & Graphics v. Guetzloe, 513 So. 2d 1110 (Fla. 5th DCA 1987). Here, Plaintiff sought judgment based only on its fee schedule election theory, as evidenced by its Complaint, the Stipulation, and as reflected in the docket. The fee schedule election issue is the sole issue in this case. Accordingly, Allstate’s Motion in Limine to Exclude/Strike Issues not Pled, Improperly Pled, and/or Waived by Plaintiff is hereby granted.
III. Allstate’s Motion for Summary Judgment and Entry of Final Judgment
The Florida Supreme Court has spoken on the sole dispositive issue. Allstate Insurance Company v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a].
Accordingly, IT IS ORDERED AND ADJUDGED:
1. Allstate’s Motion to Exclude/Strike is GRANTED.
2. Plaintiff’s Motion for Summary Judgment on the Issue of Application of the Medicare Part B Fee Schedule is DENIED.
3. Allstate’s Motion for Summary Judgment and Entry of Final Judgment is GRANTED.
IT IS FURTHER ORDERED AND ADJUDGED:
4. Final Judgment is hereby entered in favor of Allstate. Plaintiff shall take nothing by this action, and Allstate shall go hence without day. The Court reserves jurisdiction to determine Allstate’s entitlement to and amount of attorneys’ fees and costs.
