IN THE SUPREME COURT OF FLORIDA CASE NO. THIRD DCA CASE NO.: 3D10-1422 ANA MARIA AGUILAR-FERNANDEZ, vs. Petitioner, UNITED AUTOMOBILE INSURANCE COMPANY, Respondent. / PETITIONER=S BRIEF ON JURISDICTION On Discretionary Review from the Third District Court of Appeal MARLENE S. REISS, ESQ., P.A. Counsel for Petitioner Two Datran Center, Suite 1612 9130 South Dadeland Boulevard Miami, Florida 33156 Telephone: (305) 670-8010 Facsimile: (305) 670-2305
TABLE OF CONTENTS Introduction... 1 Statement of the Case and Facts... 2 Summary of the Argument... 4 Argument... 5 In This APipelined@ Case, The Third District=s Opinion Relies on a Case That is Presently Pending in This Court, Which Directly Conflicts With This Court=s Decisions in Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla. 2003) and Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000), Inasmuch as the Third District Did Not Have Certiorari Jurisdiction in the Absence of Any Departure From Clearly Established Law... 5 Conclusion... 10 Certificate of Service and Certificate of Compliance... 11 i
TABLE OF CITATIONS Allstate Ins. Co. v. Kaklamanos843 So.2d 885 (Fla. 2003)... -1- Custer Medical Center (a/a/o Maximo Masis) v. United Auto. Ins. Co.Case No. SC08-2036... -2- Ivey v. Allstate Ins. Co.774 So.2d 679 (Fla. 2000)... -1- Kaklamanos v. Allstate Ins. Co.843 So.2d 885 (Fla. 2003)... -9- Metro Inj. & Rehab Center (a/a/o Magda Davis) v. United Auto. Ins. Co.SC09-1946... -1- South Florida Medical Center (a/a/o Telmo Lopez) v. United Auto. Ins. Co.Case No. SC09-2100... -1- United Auto. Ins. Co. v. Bermudez980 So.2d 1213 (Fla. 3d DCA 2008)... -2- United Auto. Ins. Co. v. Metro Inj. & Rehab Center (a/a/o Magda Davis)16 Fla.L.Wkly.Supp. 22a (11 th Jud. Cir. App. Div., November 13, 2008)... -2- United Auto. Ins. Co. v. Santa Fe Med. Center (a/a/o Telmo Lopez)2009 WL 3188957... -3- United Auto. Ins. Co. v. South Florida Medical Center (a/a/o Telmo Lopez)21 So.3d 60 (Fla. 3d DCA 2009)... -2- OTHER: ii
Fla.Stats. '627.736... -4- iii
INTRODUCTION Petitioner ANA MARIA AGUILAR-FERNANDEZ, pursuant to Fla. Const. art. V, '3(b)(3); Fla.R.App.P. 9.030(a)(2)(A)(iv); and 9.120(d), petitions the Court to exercise its discretionary jurisdiction on the basis that the Third District Court of Appeal=s Opinion, dated June 30, 2010, directly conflicts with prior decisions of this Court, which set forth the limited circumstances in which a district court of appeal has second-tier certiorari jurisdiction to review a decision of the circuit court sitting in its appellate capacity. (A-1). This is a Apipelined@ case involving the identical jurisdictional and substantive issues that are presently pending for review before this Court in South Florida Medical Center (a/a/o Telmo Lopez) v. United Auto. Ins. Co., Case No. SC09-2100 and Metro Inj. & Rehab Center (a/a/o Magda Davis) v. United Auto. Ins. Co., SC09-1946. Relying on its decisions in United Auto. Ins. Co. v. South Florida Medical Center (a/a/o Telmo Lopez), 21 So.3d 60 (Fla. 3d DCA 2009), and United Auto. Ins. Co. v. Metro Inj. & Rehab Center (a/a/o Magda Davis), 16 So.3d 897 (Fla. 3d DCA 2009), the Third District=s decision in this case suffers the same jurisdictional defects. Specifically, the Third District=s opinion directly conflicts with this Court=s decisions Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla. 2003) and Ivey v. 1
Allstate Ins. Co., 774 So.2d 679 (Fla. 2000). The Petitioner requested that the circuit appellate court and Third District enable the plaintiff to Apipeline@ this case, given that United Auto. Ins. Co. v. South Florida Medical Center (a/a/o Telmo Lopez), 21 So.3d 60 (Fla. 3d DCA 2009) and and United Auto. Ins. Co. v. Metro Inj. & Rehab Center (a/a/o Magda Davis), 16 So.3d 897 (Fla. 3d DCA 2009), are presently pending for review in this Court. See South Florida Medical Center (a/a/o Telmo Lopez) v. United Auto. Ins. Co., Case No. SC09-2100; Metro Inj. & Rehab Center (a/a/o Magda Davis) v. United Auto. Ins. Co., SC09-1946. 1 1 Both cases are presently stayed and pending for review in this Court, and has been stayed pending disposition of Custer Medical Center (a/a/o Maximo Masis) v. United Auto. Ins. Co., Case No. SC08-2036. 2
When the county court entered a summary judgment in this case, it relied upon binding case law in existence at the time - - United Auto. Ins. Co. v. Bermudez, 980 So.2d 1213 (Fla. 3d DCA 2008) and United Auto. Ins. Co. v. Metro Inj. & Rehab Center (a/a/o Magda Davis), 16 Fla.L.Wkly.Supp. 22a (11 th Jud. Cir. App. Div., November 13, 2008). During the pendency of this appeal, the Third District reversed United Auto. Ins. Co. v. Metro Inj. & Rehab Center (a/a/o Magda Davis), 16 Fla.L.Wkly.Supp. 22a (11 th Jud. Cir. App. Div., November 13, 2008), review of which is pending before this Court in Metro Inj. & Rehab Center (a/a/o Magda Davis) v. United Auto. Ins. Co., SC09-1946. 2 The Third District also issued its decision in United Auto. Ins. Co. v. Santa Fe Med. Center (a/a/o Telmo Lopez), 21 So.3d 60 (Fla. 3d DCA 2009). In short, during the pendency of this case, the Third District reversed all of the law on which the lower courts relied, and all of which is presently pending in this Court. STATEMENT OF THE CASE AND FACTS This case arose out of a claim for personal injury protection (PIP) benefits brought by a United insured, Ana Maria Aguilar-Fernandez, pursuant to that portion of Florida=s No-Fault Statute governing PIP insurance, i.e., Fla. Stats. 2 This Court has also stayed the Metro Injury & Rehab (Magda Davis) case pending disposition of Custer Medical Center (a/a/o Maximo Masis) v. United Auto. Ins. Co., Case No. SC08-2036. 3
'627.736. On March 19, 2004, Ms. Aguilar-Fernandez was injured in an automobile accident. She incurred medical bills for treatment of her injuries. She timely submitted her bills to United Auto, but United denied benefits. On December 5, 2009, more than five years after Ms. Aguilar-Fernandez incurred her medical bills, United obtained and relied upon an the affidavit of Dr. Peter Millheiser, a so-called Apeer review@ physician, in order to oppose Ms. Aguilar-Fernandez=s Motion for Summary Judgment. Based solely on a review of medical records, and without conducting or reviewing any '627.736(7)(a) physical examination, Dr. Millheiser opined that the medical treatment rendered by Ms. Aguilar-Fernandez=s medical providers were not medically reasonable, related or necessary. The trial court entered summary judgment in favor of Ms. Aguilar-Fernandez, finding that the so-called Apeer review@ was not a Avalid report,@ pursuant to Fla.Stats. '627.736(7)(a), because it was not factually supported by a '627.736(7)(a) physical examination. During the appeal from the trial court=s summary judgment, the Third District decided United Auto. Ins. Co. v. Santa Fe Med. Center (a/a/o Telmo Lopez), 21 So.3d 60 (Fla. 3d DCA 2009). Ms. Aguilar-Fernandez appealed to the circuit court appellate division, requesting that the court reverse the summary judgment with reference to United 4
Auto. Ins. Co. v. Santa Fe Med. Center (a/a/o Telmo Lopez), 21 So.3d 60 (Fla. 3d DCA 2009) and United Auto. Ins. Co. v. Metro Inj. & Rehab Center (a/a/o Magda Davis), 16 So.3d 897 (Fla. 3d DCA 2009), to enable her to keep her case in the Apipeline,@ given that both Telmo Lopez and Magda Davis are presently pending for review and stayed in this Court. Thereafter, Ms. Aguilar-Fernandez sought a similar ruling from the Third District Court of Appeal, which is the decision of which she seeks this Court=s discretionary review based on conflict. SUMMARY OF THE ARGUMENT The Third District=s opinion conflicts with this Court=s decisions in Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla. 2003) and Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000), because the circuit court=s decision was based on law Third District Court of Appeal decisions that were issued in the absence of any second-tier certiorari jurisdiction. The law on which the circuit court was forced to rely is presently before this Court on review. The Third District did not have certiorari jurisdiction to issue its decisions in either United Auto. Ins. Co. v. South Florida Medical Center (a/a/o Telmo Lopez), 21 So.3d 60 (Fla. 3d DCA 2009) or United Auto. Ins. Co. v. Metro Inj. & Rehab (a/a/o Magda Davis), 16 So.3d 897 (Fla. 3d DCA 2009). There was no departure from any Aclearly established law@ in existence at the time that the 5
circuit court issued its opinions in either of those cases, because at the time the circuit court decided those cases, it was relying on the Third District=s decision in United Auto. Ins. Co. v. Bermudez, 980 So.2d 1213 (Fla. 3d DCA 2008). After the circuit court=s decision in Santa Fe Med. Center (a/a/o Telmo Lopez), 15 Fla.L.Wkly.Supp. 429 (11 th Jud. Cir. App. Div., January 16, 2008), which relied on United Auto. Ins. Co. v. Bermudez, 980 So.2d 1213 (Fla. 3d DCA 2008), the Third District receded from Bermudez, supra, in United Auto. Ins. Co. v. Santa Fe Med. Center (a/a/o Telmo Lopez), 21 So.2d 60 (Fla. 3d DCA 2009) in order to quash the circuit court=s opinion. The Third District also relied on United Auto. Ins. Co. v. Garrido, 22 So.3d 120 (Fla. 3d DCA 2009), which was decided even later than Santa Fe Med. Center (a/a/o Telmo Lopez). The circuit court similarly was bound by United Auto. Ins. Co. v. Metro Inj. & Rehab (a/a/o Magda Davis), 16 So.3d 897 (Fla. 3d DCA 2009), which suffered the same jurisdictional infirmity as United Auto. Ins. Co. v. Santa Fe Med. Center (a/a/o Telmo Lopez), 21 So.2d 60 (Fla. 3d DCA 2009). When the Third District decided Telmo Lopez and Magda Davis, it did not have second-tier certiorari jurisdiction because there had been no departure from the essential requirements of law when the circuit courts issued their decisions. ARGUMENT The Third District=s Decision is Based on Law That Conflicts With This Court=s Decisions in Allstate Ins. Co. v. Kaklamanos, 843 6
So.2d 885, 889 (Fla. 2003) and Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000). The Third District=s decision is based on law that conflicts with this Court=s decisions in Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla. 2003) and Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000), because neither circuit court departed from clearly established principles of law when they decided United Auto. Ins. Co. v. Santa Fe Medical Center (a/a/o Telmo Lopez), 15 Fla.L.Wkly.Supp. 429 (11 th Jud. Cir. App. Div., January 16, 2008) and United Auto. Ins. Co. v. Metro Inj. & Rehab Center (a/a/o Magda Davis), 16 Fla.L.Wkly.Supp. 22a (11 th Jud. Cir. App. Div., November 13, 2008). There was no clearly established case law from which the circuit court panels departed at the time they issued their opinions in Telmo Lopez and Magda Davis. To the contrary, the only clearly established law in existence at the time that the circuit court panels issued their opinion was United Auto. Ins. Co. v. Bermudez, 980 So.2d 1213 (Fla. 3d DCA 2008), which the circuit court panels followed. In United Auto. Ins. Co. v. Bermudez, 980 So.2d 1213 (Fla. 3d DCA 2008), the Third District determined that there was no practical distinction between an insurer=s Adenial@ of a claim and an insurer=s Awithdrawal@ of a claim for purposes of applying Fla.Stats. '627.736(7)(a). Section 627.736(7)(a) requires an insurer to obtain a Avalid report@ before denying or withdrawing authorization for medical benefits on the basis that medical treatment is unreasonable, unrelated or 7
unnecessary. The circuit court=s opinion, which held that an insurer must obtain such a Avalid report,@ before it denies benefits - - and not solely for the purpose of opposing summary judgment or otherwise defeating a lawsuit - - was entirely consistent with Bermudez, supra, and Fla.Stats. '627.736(7)(a), i.e., the controlling law at the time of the circuit court=s opinion. Nonetheless, on second-tier certiorari review, quashing the circuit court=s opinion, the Third District concluded that: We grant, in part, the petition for certiorari on the authority of our decision in United Automobile Insurance Co. v. Santa Fe Medical Center, 34 Fla. L.Weekly D2051 (Fla. 3d DCA Oct. 7, 2009)(en banc) and United Automobile Insurance Co. v. Garrido, 34 Fla. L. Weekly D2218 (Fla. 3d DCA Oct. 28, 2009), and quash that portion of the circuit court=s appellate decision that concluded that Dr. Goldberg=s peer review, which claimed that none of the insured=s medical treatment was reasonable, related or necessary, did not constitute a Avalid medical report@ under section 627.736(7)(a), Florida Statutes (2005), because the peer review was not obtained before the PIP benefits were denied. Lopez, supra, 21 So.2d 60 (Fla. 3d DCA 2009)(emphasis added). In United Auto. Ins. Co. v. Santa Fe Med. Center (a/a/o Telmo Lopez), 21 So.2d 60 (Fla. 3d DCA 2009), the Third District receded from that portion of Bermudez, supra, which held that there is no distinction between a denial or a withdrawal of authorization for medical treatment for purposes of applying '627.736(7)(a). But, Telmo Lopez was decided eight months after the circuit 8
court=s opinion was issued in United Auto. Ins. Co. v. Santa Fe Medical Center (a/a/o Telmo Lopez), 15 Fla.L.Wkly.Supp. 429 (11 th Jud. Cir. App. Div., January 16, 2008). Thus, the circuit court did not depart from the essential requirements of law - - its opinion was wholly consistent with the law in effect at the time of the decision, i.e., Bermudez, supra. The Third District=s decision conflicts with this Court=s decisions in Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla. 2003) and Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000), because it relies on a case in which the Third District had no second-tier jurisdiction, given the lack of any departure from the essential requirements of law. Rather, the Third District granted second-tier certiorari on the basis that the circuit court=s opinion in United Auto. Ins. Co. v. Santa Fe Medical Center (a/a/o Telmo Lopez), 15 Fla.L.Wkly.Supp. 429 (11 th Jud. Cir. App. Div., January 16, 2008) was contrary to law that the Third District issued subsequently - - a full eight months after the circuit court issued its opinion. See United Auto. Ins. Co. v. Santa Fe Med. Center (a/a/o Telmo Lopez), 21 So.2d 60 (Fla. 3d DCA 2009). A district court=s determination that a circuit court has departed from Aclearly established law@ must require that the Aclearly established law@actually exist at the time that the district court accepts second-tier certiorari jurisdiction. To determine that a district court has second-tier jurisdiction to review a case, based on alleged 9
departure from non-existent law, is not consistent with a long of opinions issued by this Court that set forth second-tier jurisdictional requirements, including Ivey, supra, and Kaklamanos, supra. Kaklamanos, Ivey, and their predecessors establish the standard for second-tier certiorari review, i.e., second-tier certiorari jurisdiction exists where there has been a departure from Aclearly established law,@ or Arecent controlling case law.@ Kaklamanos v. Allstate Ins. Co., 843 So.2d 885 (Fla. 2003)(emphasis added). The Third District=s opinions in United Auto. Ins. Co. v. Santa Fe Med. Center (a/a/o Telmo Lopez), 21 So.2d 60 (Fla. 3d DCA 2009) and United Auto. Ins. Co. v. Metro Inj. & Rehab (a/a/o Magda Davis), 16 So.3d 897 (Fla. 3d DCA 2009), conflicts with Kaklamanos, supra, and its predecessors because there was no Aclearly established law@ from which the circuit court appellate panels allegedly departed. See Ivey, supra (absent controlling precedent, the Court could not conclude that either the county or circuit court violated a clearly established principle of law); see also Bermont Lakes LLC v. Rooney, 980 So.2d 580 (Fla. 2d DCA 2008)(AAccording to Kaklamanos, >clearly established law= can arise from controlling case law that deals with the same issue of law.@) To the contrary, the circuit court opinions were wholly consistent 10
with the only controlling case law in existence when were decided - - United Auto. Ins. Co. v. Bermudez, 980 So.2d 1213 (Fla. 3d DCA 2008) and Fla.Stats. '627.736(7). The circuit court opinions and the Third District=s opinions demonstrate not that there was any departure from the essential requirements of law, but rather that the Third District simply disagreed with the circuit court opinions. CONCLUSION The Petitioner respectfully requests that the Court accept discretionary review in this Apipelined@ case. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true copy of the foregoing was mailed to: MICHAEL A. NEIMAND, ESQ., Counsel for United Auto, P.O. Box 694260, Miami, Florida 33269, this 28th day of July, 2010. CERTIFICATE OF COMPLIANCE Undersigned counsel certifies that this Jurisdictional Brief has been computer generated in Time New Roman 14-point font, in compliance with Fla.R.App.P. 9.210(a). MARLENE S. REISS, ESQ., P.A. 11
Counsel for Petitioner Two Datran Center, Suite 1612 9130 South Dadeland Boulevard Miami, Florida 33156 Telephone: (305) 670-8010 Facsimile: (305) 670-2305 By: H:\Docs\CASES\Aguilar-Fernandez\p\juris brf s ct.wpd MARLENE S. REISS Fla. Bar No. 864048 12