IN THE SUPREME COURT OF FLORIDA CASE NO. SC THIRD DISTRICT CASE NO. 3D PROFESSIONAL MEDICAL GROUP, INC., A/A/O MARVELIS BAUZA, Petitioner,

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC THIRD DISTRICT CASE NO. 3D PROFESSIONAL MEDICAL GROUP, INC., A/A/O MARVELIS BAUZA, Petitioner, vs. UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Respondent. BRIEF OF RESPONDENT ON JURISDICTION MICHAEL J. NEIMAND, ESQUIRE The Office of the General Counsel United Automobile Insurance Company Trial Division P.O. Box Miami, Florida Phone: (305) Fla. Bar No

2 TABLE OF CONTENTS Page TABLE OF CITATIONS... ii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 THE THIRD DISTRICT S DECISION DOES NOT CONFLICT WITH ALLSTATE INS. CO. V. KAKLAMANOS, 843 SO.2D 885 (FLA. 2003) AND IVEY V. ALLSTATE INS. CO., 774 SO.2D 679 (FLA. 2000) CONCLUSION... 7 CERTIFICATE OF SERVICE... 8 CERTIFICATE OF COMPLIANCE WITH FLORIDA RULE OF APPELLATE PROCEDURE

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4 TABLE OF CITATIONS Cases Pages Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla. 2003)... 3,4,5 Combs v. State, 436 So.2d 93 (Fla.1983)... 4 Fassy v. Crowley, 884 So.2d 359 (Fla. 2d DCA 2004)... 5 Haines City Community Development v. Heggs, 658 So.2d 523 (Fla. 1995)... 3,4 Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000)... 3 Reaves v. State, 485 So.2d 829 (Fla. 1986)... 1 So. Motor Co. of Dade County v. Doktorczyk, 957 So.2d 1215 (Fla. 3d DCA 2007)... 4,5 The Fla. Star v. B.J.F., 530 So.2d 286 (Fla. 1988)... 6 United Auto. Ins. Co. v. Garrido, 21 So.3d 112 (Fla. 3d DCA 2009)... 2,4,5,6 United Auto. Ins. Co. v. Santa Fe Medical Center, 21 So.3d 60 (Fla. 3d DCA 2009).... 2,4,5,6 ii

5 Statutes, Rules, and Other Sources Harry Lee Anstead, Gerald Kogan, Thomas D. Hall, & Robert Craig Waters, The Operation and Jurisdiction of the Florida Supreme Court, 29 Nova L. Rev. 431 (Spring 2005)... 6 Section (4)(b), Florida Statutes... 2,3 Section (7)(a), Florida Statutes... 2,3 iii

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7 INTRODUCTION The Petitioner, Professional Medical Group, Inc., was the Plaintiff in the trial court, the Respondent before the District Court and will be referred to as ProMed. The Respondent, United Automobile Insurance Company, was the Defendant below, the Petitioner before the District Court and will be referred to as United Auto. The Insured was Marvelis Bauza and will be referred to as Bauza. The symbol A. will designate the appendix to this brief. STATEMENT OF THE CASE AND FACTS Respondent rejects the Statement of Cases and Facts found in the Petitioner s Amended Brief on Jurisdiction as containing numerous statements not found within the four corners of the opinion of the Third District Court of Appeal. Reaves v. State, 485 So.2d 829, 830 (Fla. 1986). As this Court has explained: This case illustrates a common error made in preparing jurisdictional briefs based on alleged decisional conflict. The only facts relevant to our decision to accept or reject such petitions are those facts contained within the four corners of the decisions allegedly in conflict. As we explain in the text above, we are not permitted to base our conflict jurisdiction on a review of the record or on facts recited only in dissenting opinions. Thus, it is pointless and misleading to include a comprehensive recitation of facts not appearing in the decision below, with citations to the record, as petitioner provided here. Id. at 830 n. 3. The only relevant facts set forth in the decision of the Third District below is that the circuit court in its appellate capacity found that Dr. Goldberg's 1

8 peer review, which claimed that none of the insured's medical treatment was reasonable, related, or necessary, did not constitute a valid medical report under section (7)(a), Florida Statutes, because the peer review was not obtained before the PIP benefits were denied. (A-2). The Third District quashed this portion of the decision of the circuit court, based on its previous decisions in United Auto. Ins. Co. v. Santa Fe Medical Center, 21 So.3d 60 (Fla. 3d DCA 2009) and United Auto. Ins. Co. v. Garrido, 21 So.3d 112 (Fla. 3d DCA 2009). (A-2). SUMMARY OF THE ARGUMENT In the instant case the Third District found that the law, as clearly established in its prior decisions in United Auto. Ins. Co. v. Santa Fe Medical Center, 21 So.3d 60 (Fla. 3d DCA 2009) and United Auto. Ins. Co. v. Garrido, 21 So.3d 112 (Fla. 3d DCA 2009), was that section (7)(a), only applies when a PIP insurer seeks to withdraw of future benefits and not when benefits are denied. Thus, the Third District correctly found that the circuit court departed from the clearly established principle of law in determining that section (7)(a) applied in a situation where benefits were denied. The Third District found that the circuit court failed to apply the correct law and this failure resulted in a miscarriage of justice. Thus, conflict does not exist and this court should not exercise its discretionary jurisdiction. 2

9 ARGUMENT THE THIRD DISTRICT S DECISION DOES NOT CONFLICT WITH ALLSTATE INS. CO. V. KAKLAMANOS, 843 SO.2D 885 (FLA. 2003) AND IVEY V. ALLSTATE INS. CO., 774 SO.2D 679 (FLA. 2000). The Third District s opinion is not in conflict with Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla. 2003) and Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000). A petition for second-tier certiorari may be granted only in those instances in which the lower court did not afford procedural due process or departed from the essential requirements of the law. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla. 2003). A failure to observe the essential requirements of law has been held synonymous with a failure to apply the correct law. Haines City Community Development v. Heggs, 658 So.2d 523 (Fla. 1995). Relief may not be granted unless it is determined that the circuit court departed from the essential requirements of law with a resulting miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000). In the instant case, Third District determined that the circuit court in its appellate capacity applied the incorrect law, namely, that section (7)(a) was applied to a denial of medical bills when the correct law was that section (4)(b) should have been applied. As authority, the Third District cited to 3

10 the reasoning established in its prior decisions in United Auto. Ins. Co. v. Santa Fe Medical Center, 21 So.3d 60 (Fla. 3d DCA 2009) and United Auto. Ins. Co. v. Garrido, 21 So.3d 112 (Fla. 3d DCA 2009). Therefore, the Third District was correct in its exercise of its second-tier jurisdiction. As recognized by this Court, a failure to observe the essential requirements of law has been held synonymous with a failure to apply the correct law. Haines City Community Development v. Heggs, 658 So.2d 523 (Fla. 1995). Clearly established law can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla. 2003). The Third District has interpreted these standards in the following manner: In its discussion of the second-level certiorari standard, the Florida Supreme Court has recognized that second-level review is not intended to serve as a second appeal, and that the phrase departure from the essential requirements of law should not be narrowly construed so as to apply only to violations which effectively deny appellate review or which pertain to the regularity of procedure. See Combs v. State, 436 So.2d 93, 95 (Fla.1983). As the Florida Supreme Court stated in Kaklamanos, however, certiorari review properly lies where a case calls for the interpretation or application of a statute. Kaklamanos, 843 So.2d at 890. In that case, the Florida Supreme Court determined that the district court correctly granted certiorari on second-tier review because the circuit court's interpretation of the legal issue in question was too narrow and conflicted with the intent and language of the statute under review. Id. at The conflict in Kaklamanos, between the circuit court's interpretation and the intent underlying the statute, evidently was sufficient to satisfy the standard 4

11 that the circuit court had failed to apply the correct law as clearly established. The Florida Supreme Court stated in Kaklamanos that clearly established law can be derived not only from case law, but also from the interpretation or application of a statute, a procedural rule, or a constitutional provision. Id. at 890. So. Motor. Co. of Dade County v. Doktorczyk, 957 So.2d 1215, 1216 (Fla. 3d DCA 2007). In its brief on jurisdiction, Petitioner bases its argument on the fact the circuit court s decision was issued prior to the decisions cited by the Third District. However, based on the aforementioned analysis, an exercise of second-tier review was absolutely appropriate as there was a conflict between the circuit court s interpretation and the intent underlying the statute. The Third District s application of certiorari is absolutely consistent with this Court s holding in Kaklamanos. As the Second District has succinctly stated: In Kaklamanos, no appellate case controlled the issue, so our supreme court looked to the intent of the personal injury protection (PIP) statute and read various parts of the statute in pari materia to find clearly established law upon which certiorari review could be granted. Id. at Fassy v. Crowley, 884 So.2d 359, 364 (Fla. 2d DCA 2004). The statutory analysis constituting clearly established law is presented clearly and concisely by the Third District in its Santa Fe and Garrido decisions. To require a district court to repeat the same analysis in each subsequent case on the same issue would be a 5

12 heinous waste of judicial economy. As has been explained: [T]he lower appellate courts often have a large number of cases before them dealing with the same legal issue. To save both time and resources, one case may be selected as the lead case to be decided with a full opinion, while the others are resolved in short opinions that often do little more than cite to the decision in the lead case. Harry Lee Anstead, Gerald Kogan, Thomas D. Hall, & Robert Craig Waters, The Operation and Jurisdiction of the Florida Supreme Court, 29 Nova L. Rev. 431, 522 (Spring 2005). Here, Santa Fe and Garrido were the lead cases and the instant case was decided based on the logic set forth in those decisions. Currently, the decision in Santa Fe is pending before this Court on a Petition for Discretionary Review in Case No. SC Discretionary Review was not sought in Garrido. Should this Court elect to take jurisdiction in Santa Fe, this Court would have jurisdiction to review the instant case as a piggyback case. The Fla. Star v. B.J.F., 530 So.2d 286, 288 n. 3 (Fla. 1988). However, if this Court elects to decline jurisdiction in Santa Fe, this Court should deny review of the instant case, as the Petitioner has set forth no independent grounds for this Court s jurisdiction. 1 Proceedings in this case have been stayed pending the resolution of Custer Medical Center a/a/o Maximo Masis v. United Auto. Ins. Co., Case No. SC

13 CONCLUSION Based upon the foregoing points and authorities, Respondent respectfully submits that the Third District s decision does not create any conflict and therefore Respondent prays that this Court enter an order denying discretionary jurisdiction. Respectfully submitted, The Office of the General Counsel United Automobile Insurance Company Trial Division P.O. Box Miami, Florida Phone: (305) Fla. Bar No MICHAEL J. NEIMAND 7

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via U.S. Mail, on this day of February 2010 to: Marlene Reiss, Esq., Two Datran Center, Suite 1612, 9130 South Dadeland Boulevard, Miami, Florida MICHAEL J. NEIMAND CERTIFICATE OF COMPLIANCE WITH FLORIDA RULE OF APPELLATE PROCEDURE I HEREBY CERTIFY that this brief complies the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2). MICHAEL J. NEIMAND 8