IN THE SUPREME COURT OF THE STATE OF FLORIDA TALLAHASSEE, FLORIDA

IN THE SUPREME COURT OF THE STATE OF FLORIDA TALLAHASSEE, FLORIDA SUPREME COURT CASE NO.: SC11-734 THIRD DCA CASE NO. s: 3D09-3102 & 3D10-848 CIRCUIT CASE NO.: 09-25070-CA-01 UNITED AUTOMOBILE INSURANCE COMPANY, vs. Petitioner, MIAMI DADE COUNTY MRI, CORP; HEALTH DIAGNOSTIC OF MIAMI, LLC d/b/a STAND UP MRI OF MIAMI; HALLANDALE OPEN MRI, LLC; and, OPEN MRI OF MIAMI DADE. Respondents. RESPONSE TO PETITIONER S JURISDICTIONAL BRIEF On Discretionary Review from the District Court of Appeal, Third District KEVIN B. WEISS, ESQ. Florida Bar No.: 00117595 WEISS LEGAL GROUP, P.A. 698 North Maitland Avenue Maitland, Florida 32751 Telephone: (407) 599-9036 Facsimile: (407) 599-3978 June 16, 2011

TABLE OF CONTENTS Table of Authorities... ii I. Statement of the Case and of the Facts..1 II. Summary of the Argument... 2 III. Argument... 3 The Alexdex Decision...5 The Sea Breeze Decision......6 IV. Conclusion... 9 Certificate of Service... 10 Certificate of Compliance... 11 i

TABLE OF AUTHORITIES CASES PAGE Alexdex Corp. v. Nachon Enters., 641 So. 2d 858 (Fla. 1994).2, 3, 5, 6, 7, 8 Blue Cross & Blue Shield of Fla., Inc. v. Steck, 818 So. 2d 465 (Fla. 2002).....4, 9 Curry v. State, 682 So. 2d 1091 (Fla. 1996)... 4 Gandy v. State, 846 So. 2d 1141, 1143 (Fla. 2003).4 Hankey v. Yarian, 755 So. 2d 93, 96 (Fla. 2000).4 MRI Services v. State Farm, 807 So. 2d 783 (Fla. 2d DCA 2002)...7 Plantation General Hospital Limited Partnership v. Johnson, et. al., 621 So. 2d 551, 553 (Fla. 4th DCA 1993)...8 Rappa v. Island Club West Development, Inc., 890 So. 2d 477 (Fla. 5th DCA 2004). 8 Sea Breeze Video v. Federico, 648 So. 2d 226 (Fla. 2d DCA 1994).. 2, 3, 5, 6, 7 United Auto. Ins. Co. v. Kendall S. Med. Ctr., 54 So. 3d 543 (Fla. 3d DCA 2011)....3 United Auto. Ins. Co. v. Miami Dade County MRI Corp., 56 So. 3d 121 (Fla. 3d DCA 2011).2 ii

STATUTES AND RULES OF PROCEDURE Section 26.012(2)(a), (c), (g), Fla. Stat. (1989).5 Section 34.01(1)(c)(4), Fla. Stat.....8 Section 34.01(4), Fla. Stat. (Supp. 1990)...6 Section 34.01(4), Fla. Stat. (1997).....7 Section 86.011, Fla. Stat....3, 4, 5, 6 Section 627.736, Fla. Stat... 1, 5, 7 Fla. R. App. P. 9.030(2)(A)(iv)...2 OTHER CITATIONS Article V, Section 3(b) of the Florida Constitution....4 Article V, section 3(b)(3), of Florida s Constitution...2 iii

I. STATEMENT OF THE CASE AND OF THE FACTS The underlying consolidated cases arose out of a declaratory judgment action filed against the Respondent, Health Diagnostic of Miami, LLC d/b/a Stand Up MRI of Miami, by the Petitioner, United Automobile Insurance Company. 1 United Auto s lawsuit sought a determination, pursuant to Fla. Stat. Section 627.736, of whether the statutory fee schedule should apply to the specific PIP insurance policy which was assigned by the insured to Stand Up MRI. United Auto filed its declaratory judgment action in the circuit court, even though the policy of insurance at issue only provided $10,000.00 in PIP benefits. United Auto claimed that despite the jurisdictional limits of the circuit court, it had the right to file its declaratory judgment action in either the circuit court or the county court. Stand Up MRI maintained that United Auto was required to file its declaratory judgment in the county court, where the jurisdictional limits are less than $15,000.00. Stand Up MRI moved to dismiss United Auto s case. The circuit court, having a jurisdictional threshold of $15,000.00, dismissed United Auto s complaint for lack of subject matter jurisdiction. United Auto claimed error and appealed to the Third District Court of Appeals. The Third District affirmed 1 The Petitioner, United Automobile Insurance Company, will be referred to as United Auto or the Petitioner. The Respondent, Health Diagnostic of Miami, LLC d/b/a Stand Up MRI of Miami, will be referred to as Stand Up MRI. 1

the trial court, finding that both statute and caselaw required United Auto to file its declaratory judgment action in the county court because of the jurisdictional limits of the underlying claim. See United Auto. Ins. Co. v. Miami Dade County MRI Corp., 56 So. 3d 121 (Fla. 3d DCA 2011). United Auto continues to take issue with the applicable authority and has filed an appeal to this Court claiming that the Third District s decision conflicts with this Court s decision in Alexdex Corp. v. Nachon Enters., 641 So. 2d 858 (Fla. 1994) and the Second District s opinion in Sea Breeze Video v. Federico, 648 So. 2d 226 (Fla. 2d DCA 1994). 2 The Third District s Opinion does not cite to any other opinion of any other district court of appeal or of the Supreme Court on the points in dispute that would create express or direct conflict. II. SUMMARY OF THE ARGUMENT There is no direct or express conflict with any district court opinion or with a Florida Supreme Court opinion concerning the Third District s decision that gives rise to discretionary jurisdiction pursuant to Article V, section 3(b)(3), of Florida s Constitution or pursuant to Fla. R. App. P. 9.030(2)(A)(iv). In addition, the Third District did not certify any question to be of great public importance. United Auto is desperately seeking relief from this Court without justification because it is not 2 For housekeeping purposes, note that United Auto used an erroneous 2

satisfied with the decision of the Third District, which is consistent with those decisions from this Court and as well as from the Legislature. In the case at issue, the Third District relied on the clear language of Fla. Stat. 86.011, which clearly states that [t]he circuit and county courts have jurisdiction within their respective jurisdictional amounts. The Court also followed its prior decision of United Auto. Ins. Co. v. Kendall S. Med. Ctr., 54 So. 3d 543 (Fla. 3d DCA 2011), which discussed and distinguished this Court s ruling in Alexdex Corp. v. Nachon Enters., 641 So. 2d 858 (Fla. 1994). Because there is no conflict of any kind with any district court case or with a case from this Court, this Court should dismiss United Auto s Petition and deny jurisdiction. III. ARGUMENT The Court should deny jurisdiction because none of the cases cited by the Petitioner expressly or directly conflict with the Third District s Opinion. The cases cited for conflict by the Petitioner are distinguishable and were decided based on the unique facts of those cases. United s attempt to stretch those cases into having some applicability to the instant PIP case should be rejected. This Court has previously held that [t]he jurisdiction of this Court extends only to the narrow class of cases citation for the Sea Breeze decision. 3

enumerated in Article V, Section 3(b) of the Florida Constitution. Gandy v. State, 846 So. 2d 1141, 1143 (Fla. 2003). Cases distinguishable on their facts do not satisfy the requirement that the cases conflict and thus they cannot serve as the basis for invoking jurisdiction. Blue Cross & Blue Shield of Fla., Inc. v. Steck, 818 So. 2d 465 (Fla. 2002); Curry v. State, 682 So. 2d 1091 (Fla. 1996). The Third District s Opinion rejecting the Petitioner s attempt to file a declaratory judgment action in circuit court based on a $10,000.00 PIP policy is solidly based on Fla. Stat. 86.011, which clearly states that [t]he circuit and county courts have jurisdiction within their respective jurisdictional amounts. The jurisdictional amount of the county court is below $15,000.00 and the jurisdictional threshold for circuit court is $15,000.00. The PIP policy at issue involves only $10,000.00 in benefits. Therefore, according to the plain language of the statute, the circuit court properly dismissed the case. Fla. Stat. 86.011 is unambiguous, directly on point and was the proper basis for the Third District s analysis. See Hankey v. Yarian, 755 So. 2d 93, 96 (Fla. 2000)("It has long been a rule of statutory construction that statutes must be given their plain and obvious meaning and courts should assume that the legislature knew the plain and ordinary meaning of words when it chose to include them in a statute.") (citations omitted). The plain and obvious meaning of Fla. Stat. 86.011 leads to one conclusion- that only the county court has jurisdiction to consider a 4

dispute involving a PIP policy having limits of $10,000.00. Next, the Third District s decision is not legally or factually analogous to Alexdex Corp. v. Nachon Enters., 641 So. 2d 858 (Fla. 1994) or the Second District s opinion in Sea Breeze Video v. Federico, 648 So. 2d 226 (Fla. 2d DCA 1994). In each of these cases, the appellate courts reviewed the facts, the caselaw and the applicable statutes as a whole and then applied them as it believed the Legislature would have intended. There is no express and direct conflict where different courts interpret different cases and unrelated statutes and then apply the law to the facts of the case. Accordingly, any allegation of conflict by the Petitioner should be disregarded. The Alexdex Decision Alexdex involved a foreclosure of a construction lien pursuant to a unique statute that is not at issue in this case. 3 Alexdex did not involve a claim, as in the instant case, for declaratory relief brought by an insurance company pursuant to Fla. Stat. 86.011. It also did not involve an insurance dispute related to Fla. Stat. Section 627.736. Fla. Stat. 86.011 is directly on point with our issue and is not addressed by the Alexdex Court; therefore, United Auto s claim that the Third District s decision conflicts with Alexdex is simply without merit. Furthermore, the Alexdex Court recognized that the Legislature can define a court s jurisdiction and create specific laws (such as Fla. Stat. 3 The statutes at issue in Alexdex were 26.012(2)(a), (c), (g), Fla. Stat. (1989) 5

86.011) regarding jurisdiction: The jurisdiction of the courts of the state is broadly defined by our State Constitution; however, the legislature may further define a court's jurisdiction so long as the jurisdiction, as redefined, is not in conflict with the Constitution. Alexdex, 641 So. 2d at 861. Certainly, the Third District could conclude that consistent with Alexdex, the Legislature properly created Fla. Stat. 86.011 which supports the circuit court s dismissal in this case. The statutory analysis by the Third District certainly does not conflict, in any way, with the reasoning utilized by the Alexdex Court in finding that the circuit court did not have jurisdiction to hear United Auto s declaratory judgment action. Alexdex has absolutely nothing to do with the Third District s interpretation of Florida s No- Fault law or the interpretation and application of Fla. Stat. 86.011. Consequently, there is a complete lack of conflict between the two cases. The Sea Breeze Decision The Petitioner next suggests that the instant case conflicts with Sea Breeze Video v. Federico, 648 So. 2d 226 (Fla. 2d DCA 1994). Sea Breeze is another decision that involves the question of whether the county court as well as the circuit court has jurisdiction to issue equitable relief, such as injunctions. Sea Breeze had nothing to do with rights and obligations under an insurance policy or the PIP statute, Fla. Stat. and 34.01(4), Fla. Stat. (Supp. 1990). 6

Section 627.736. In Sea Breeze, the Petitioner sued Pinellas County to challenge certain county laws which attempted to regulate adult-use businesses. The Petitioner sought an injunction to prevent the enforcement of the ordinances. Sea Breeze, 648 So.2d at 227. The Second District found that both the county court, as well as the circuit court, could issue injunctions. Id. Further it relied on Alexdex and found that circuit and county courts have concurrent jurisdiction of equitable matters falling within the jurisdictional amount of the county court. Id. This holding is consistent with the holding of the Third District in the instant case and thus there is no conflict between the Second and Third Districts or even this Court s Alexdex decision. United Auto declined to discuss a more recent Second District case which is also aligned with the Third District s decision in the instant case, as well as this Court s Alexdex decision. In MRI Services v. State Farm, 807 So. 2d 783 (Fla. 2d DCA 2002), the Plaintiff filed an equitable action where no dollar amount was sought. Id. at 786. State Farm argued that the county court did not have jurisdiction to hear the declaratory judgment action. The Second District rejected this argument and held that jurisdiction was appropriate in county court. It stated: In 1990, the legislature gave certain equitable powers to the county court. Section 34.01(4), Florida Statutes (1997), provides that county courts may hear all matters in equity involved in any case within the jurisdictional amount of the county court. As the amount in controversy 7

in this case does not exceed $ 15,000, the county court had jurisdiction. 34.01(1)(c)(4). See Alexdex Corp. v. Nachon Enter., Inc., 641 So. 2d 858, 862 (Fla. 1994) ("The legislature intended to provide concurrent equity jurisdiction in circuit and county courts, except that equity cases filed in county courts must fall within the county court's monetary jurisdiction, as set by statute."). Id. The Fourth District and the Fifth District are also aligned with the Third District. See Plantation General Hospital Limited Partnership v. Johnson, et. al., 621 So. 2d 551, 553 (Fla. 4th DCA 1993) (where the subject of the a declaratory judgment action involves an amount in controversy that does not exceed the sum of $15,000.00, the action must be brought in the county court) and Rappa v. Island Club West Development, Inc., 890 So. 2d 477 (Fla. 5th DCA 2004) (declaratory judgment action should have been filed in county court). Apparently, the Second District, Fourth District, Fifth District and the Third District are not in conflict and the only party having a conflict with the caselaw is United Auto. There is no basis for jurisdiction in this case. IV. CONCLUSION There is no jurisdictional basis for review by this Court because the Third District s Opinion does not conflict with any case from this Court or any district court of appeal. None of the cases relied upon by Petitioner support a claim of express and direct conflict. The cases cited as conflict by the Petitioner have nothing to do with 8

rights and benefits under a policy of insurance and Florida s No-Fault Law and can be completely distinguished on their facts. See supra, Blue Cross & Blue Shield of Fla. v. Steck, 818 So. 2d 465 (Fla. 2002). There is also no conflict with this Court and the Petition should therefore be dismissed. 9

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail, this 16 th day of June, 2011, to: Andrew J. Weinstein, Esq., Weinstein & Associates, P.A., 1515 University Dr., Suite 103, Coral Gables, FL 33071, Co-counsel for Respondent Health Diagnostic of Miami, LLC; Kenneth Dorchak, Esq., Buchalter, Hoffman & Dorchak, 1075 NE 125 th St., Suite 202, Miami, FL 33161 and Kimberly L. Boldt, Esq., Boldt Law Firm, 2001 Tyler Street, Suite 2, Hollywood, FL 33020, Attorneys for Respondents; and, Michael J. Neimand, Esq., Office of the General Counsel United Automobile Ins. Co., P.O. Box 694260, Miami, FL 33269-9854, Attorney for the Petitioner. WEISS LEGAL GROUP, P.A. 698 North Maitland Ave. Maitland, FL 32751 407-599-9036 (Phone) 407-599-3978 (Fax) Attorneys for Respondent, Health Diagnostic of Miami, LLC KEVIN B. WEISS Florida Bar No. 117595 10

CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2) i.e. Times New Roman 14 pt. By: Kevin B. Weiss 11