Third District Court of Appeal State of Florida
Opinion filed April 19, 2017. THIS OPINION IS NOT FINAL UNTIL DISPOSITION OF ANY MOTION FOR REHEARING AND/OR REHEARING EN BANC. ANY PREVIOUSLY-FILED MOTION FOR REHEARING EN BANC IS DEEMED MOOT.
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No. 3D16-38 Lower Tribunal No. 13-461 ________________
Allstate Fire and Casualty Insurance Company, Petitioner,
vs.
Hallandale Open MRI, LLC, a/a/o Alexia Blake, Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate Division, Jacqueline Hogan Scola, Jorge Cueto, and Ariana Fajardo Orshan, Judges.
Shutts & Bowen, and Suzanne Youmans Labrit and Douglas G. Brehm (Tampa); Cozen O’Connor, and Peter J. Valeta (Chicago, IL), for petitioner.
Marlene S. Reiss, for respondent. Before SALTER, LOGUE and SCALES, JJ.
SALTER, J.
On Motion for Rehearing
On consideration of the petitioner’s motion for rehearing, the response, and
the decision of the Supreme Court of Florida in Allstate Insurance Co. v.
Orthopedic Specialists, No. SC15-2298, 2017 WL 372092 (Fla. Jan. 26, 2017)
(“Orthopedic Specialists II”), we withdraw our opinion in this case issued
September 28, 2016,1 and replace it with the opinion which follows.
In the September 2016 opinion, we dismissed a petition for second-tier
certiorari filed by Allstate Fire and Casualty Insurance Company (“Allstate”).
Allstate’s petition asked the Court to quash a 2015 circuit court appellate division
opinion affirming a county court judgment for a medical provider in a personal
injury protection (PIP) auto insurance case. The appellate division decided an
interpretive question regarding the sufficiency of PIP policy language following
the Legislature’s amendments to section 627.736, Florida Statutes, in 2008.
In Orthopedic Specialists II, the Supreme Court of Florida has now
determined that interpretive question. The Court held that a PIP policy term
providing that reimbursements “shall be subject to” the Medicare fee schedules in
1Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, 41 Fla. L. Weekly D2208 (Fla. 3d DCA Sept. 28, 2016).
2 section 627.736(5)(a)2., Florida Statutes (2009), is unambiguous, resolving a
conflict in decisions previously issued by the First and Fourth District Courts of
Appeal: Allstate Fire & Cas. Ins. Co. v. Stand-Up MRI of Tallahassee, P.A., 188
So. 3d 1 (Fla. 1st DCA 2015) (finding the policy provision unambiguous and
mandatory), and Orthopedic Specialists v. Allstate Ins. Co., 177 So. 3d 19 (Fla. 4th
DCA 2015) (“Orthopedic Specialists I”) (finding the policy provision ambiguous).
At the time the circuit court appellate division ruled in the present case, this Court
had not addressed the underlying issue.2 The circuit court appellate division
concluded that the PIP policy language was ambiguous, following the reasoning
and opinion of the Fourth District in Orthopedic Specialists I.
Under the standard for second-tier certiorari review established in Custer
Medical Center v. United Automobile Insurance Co., 62 So. 3d 1086 (Fla. 2010),
and Allstate Insurance Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003), we initially
concluded that we did not have jurisdiction in this case. With the conflict issue
pending before the Supreme Court of Florida, we discerned no violation of a
2 While the petition in this case was pending, however, a panel of this Court heard a direct appeal regarding the same issue certified to us by the county court based on conflicting circuit court decisions. Fla. Wellness & Rehab. v. Allstate Fire & Cas. Ins. Co., 201 So. 3d 169 (Fla. 3d DCA 2016) (“Fla. Wellness”). This Court concluded that the “shall be subject to” language in the PIP policy was unambiguous and mandatory, certifying conflict with the Fourth District opinion in Orthopedic Specialists I.
3 “clearly established principle of law resulting in a miscarriage of justice.” Custer
Med. Ctr., 62 So. 3d at 1092. The original dissenting opinion in this case,
however, argued against dismissal based on this Court’s decision in Florida
Wellness, which by then had concluded that the “shall be subject to” term in the
PIP policy was unambiguous:
It is clearly a miscarriage of justice to prevent further review in a manner that causes the identical cases of similarly situated persons in the same court to be decided differently based on conflicting legal interpretations. And this clear miscarriage of justice resulting from the failure to allow review reflects a departure from the most essential legal requirement—equality before the law. No other legal remedy exists to stop this miscarriage of justice here except a writ of certiorari.
Allstate Fire and Cas. Ins. Co. v. Hallandale Open MRI, LLC, 41 Fla. L. Weekly
D2208, D2210 (Fla. 3d DCA Sept. 28, 2016) (Logue, J., dissenting). The majority
concluded that the Supreme Court of Florida would itself ultimately resolve the
conflict in decisions, such that we could not yet hold in this case that the circuit
court appellate division had violated a clearly established principle of law resulting
in a miscarriage of justice. The pendency of the conflict issue in the Supreme
Court distinguished the present case, in the view of the majority, from our own
precedent relied upon by Allstate. United Auto Ins. Co. v. Garrido, 22 So. 3d 120
(Fla. 3d DCA 2009) (second-tier certiorari review appropriate to resolve an
internal conflict of decisions in the circuit court appellate division).
4 But the Supreme Court of Florida has now resolved the conflict issue in an
opinion which turns on a de novo statutory and contractual interpretation, quashing
Orthopedic Specialists I and approving Stand-Up MRI. Orthopedic Specialists II,
2017 WL 372092 at *1. Our colleague’s earlier dissent in the present case and our
own concern regarding the jurisdictional limits of second-tier certiorari as detailed
by the Supreme Court of Florida in Custer Medical Center can now be reconciled.
The statutory and policy language in question have been definitively analyzed and
interpreted for the entire state by its highest court.
Applying the Supreme Court’s opinion in Orthopedic Specialists II to the
petition in the present case, we conclude that the jurisdictional requirements of
Custer Medical Center are satisfied, such that the petition should be granted. From
the standpoint of the circuit court appellate division panel, this may seem
unwarranted, essentially quashing the panel’s opinion based on a subsequently-
decided appellate decision that was unavailable to the panel when called upon to
rule.
When the appellate division reached its decision in 2015, this Court had not
decided the issue and the appellate division followed one of the two conflicting
district court opinions. But with that conflict now eliminated by our Supreme
Court and a definitive interpretation available to (and binding upon) all Florida
5 courts, we conclude that we should exercise our jurisdiction in conformance with
the Supreme Court’s decision in Orthopedic Specialists II.
The concurring and dissenting opinions on rehearing which follow address
the inconsistencies within the case law affecting our consideration of petitions for
second-tier certiorari. On the one hand, our Supreme Court in Custer Medical
Center has admonished the district courts to narrowly restrict the application of
our jurisdiction regarding second-tier certiorari. But on the other hand, a decision
by our Supreme Court on a substantive question of Florida law—one which, as
here, finally resolves conflicting opinions on that question at the county, circuit,
and district court levels throughout the state—deserves immediate application as to
otherwise-final opinions that were continuously challenged at all levels by the
petitioner.
The dissent’s reliance on Petrysian v. Metropolitan General Insurance Co.,
672 So. 2d 562 (Fla. 5th DCA 1996), and Theisen v. Old Republic Insurance Co.,
468 So. 2d 434 (Fla. 5th DCA 1985), is misplaced. Those decisions addressed a
different question altogether: whether a litigant may obtain post-judgment relief
from a final judgment under Florida Rule of Civil Procedure 1.540 “on the ground
that a subsequent appellate decision in an unrelated case changed the rule of law
upon which the final judgment was based.” Theisen, 468 So. 2d at 435.
6 In the present case, a completely different scenario is presented. The county
court case became a “test case,” regarding the conflict question. The amended
final judgment for the medical provider/plaintiff was $407.26, the difference
between the amount payable under the statutory formula of section 627.736(5)(a),
Florida Statutes (2012), and the “reasonable amount” applicable if the statutory
formula was inapplicable. The amended final judgment and county court record
include joint stipulations of fact, and they do not reflect any attempt to collect the
judgment, liquidate the amount of trial and appellate attorney’s fees, or stay the
final judgment, during the pendency of the appeal in the circuit court and the
petition proceedings here. The further challenges to the small, county court
judgment obviously were not based on the sum in controversy in that case, but
rather on the thousands of PIP cases affected by the interpretive question issue each
year.3
The parties thus recognized (whether or not they used the term) that this was
a “pipeline”4 case that would be controlled by the ultimate outcome here or, if
3 For those concerned that an insurer will protract review proceedings through petitions for second-tier certiorari, the fee-shifting consequences of a denial or dismissal of the insurer’s petition (section 627.428, Florida Statutes (2016)), should provide significant consolation. 4 Judge Logue emphasized the appropriateness of such “pipeline” treatment in his original dissent in this case, 41 Fla. L. Weekly at D2210, distinguishing second- tier certiorari consideration from a “second appeal.” The pipeline concept is
7 applicable, in the Supreme Court of Florida. Although they did not await the
resolution of the conflict issue in a pending “appeal,” it is appropriate to
characterize the issue during the pendency of this certiorari case as “pending
further review.” The interests of medical providers and the interests of PIP
insurers alike were served when clarity was provided by the Supreme Court of
Florida regarding the issue.
Petition granted.
LOGUE, J., concurs.
intended to preserve a party’s (usually a criminal defendant’s) right to obtain retrospective application of a pending or hoped-for change in decisional law. See Mitchell v. Moore, 786 So. 2d 521, 530-31 and 530 n.8 (Fla. 2001).
8 Allstate Fire & Casualty Insurance Company vs. Hallandale Open MRI, LLC Case No. 3D16-38
LOGUE, J., concurring.
I fully concur that a writ of certiorari should issue quashing the decision of
the circuit court in its appellate capacity for the reasons stated in the majority
opinion. But I write to explain my belief that there is an additional ground to issue
the writ of certiorari in this case. The circuit court appellate decision under review
expressly and directly conflicts with prior appellate decisions of the same circuit
court.5 I believe a district court of appeal has the discretion to issue a writ of
certiorari on second-tier review to resolve such an express and direct conflict
between circuit court appellate decisions within its district.
My position can be summarized as follows: (1) a defect in our court system
currently prevents the establishment of clearly established principles of law
governing a wide array of county court issues; (2) Florida courts historically issued
writs of certiorari to review conflicts among lower appellate decisions; (3) issuing
a writ of certiorari to resolve a conflict among circuit court decisions is not a
second appeal because the review focuses on clarifying the law and not the
5Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI LLC, a/a/o Blake, 23 Fla. L. Weekly Supp. 683, 684 (Fla. 11th Cir. Ct. Dec. 7, 2015) (listing conflicting cases and noting “[w]e respectfully disagree with our colleagues”).
9 outcome for the litigants; and (4) the current standard for second-tier certiorari
permits review to resolve conflicts in lower appellate decisions.
(1) A defect in our court system prevents the establishment of clearly established principles of law governing a wide array of county court issues.
A properly functioning system of appellate courts will necessarily produce
conflicting decisions. And a properly functioning system of appellate courts will
necessarily have a method to resolve those conflicts. For example, the Florida
Supreme Court resolves conflicts that arise among the district courts of appeal. Art.
V, § 3(b)(3), Fla. Const. Of course, the district courts are not the only appellate
courts in Florida. The circuit courts serve as appellate courts when reviewing
orders of the county courts and local governments. Art. V, § 5(b), Fla. Const.; §
26.012(1), Fla. Stat. (2016). Just as the Florida Supreme Court resolves conflicts
among the district courts of appeal, the district courts should similarly resolve
conflicts among the circuit courts acting in their appellate capacity. But this is not
happening.
It is a well-known, but little-discussed defect in our court system that
litigants in the county courts often have their cases decided based upon conflicting
circuit court appellate decisions. As occurred in the case below, litigants in the
exact same circumstances filing in the exact same county court receive different
10 outcomes based on conflicting case law. The instant case is only a recent example.
Twenty years ago, this defect was identified by the Second District in an opinion
written by Judge Chris Altenbernd. As a result of this “significant problem within
our existing judicial structure[,]” Judge Altenbernd wrote, referring to the confused
and conflicting precedents governing county courts, “there may never be ‘clearly
established principles of law’ governing a wide array of county court issues,
including PIP issues.” Stilson v. Allstate Ins. Co., 692 So. 2d 979, 982 (Fla. 2d
DCA 1997). The Supreme Court of Florida agreed and adopted Judge Altenbernd’s
language in full in Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683 (Fla. 2000)
(quoting Stilson, 692 So. 2d at 982).
The idea that “there may never be ‘clearly established principles of law’
governing a wide array of county court issues” contradicts an essential limitation to
judicial discretion—that “[d]ifferent results reached from substantially the same
facts comport with neither logic nor reasonableness.” Canakaris v. Canakaris, 382
So. 2d 1197, 1203 (Fla. 1980). Accepting this idea would constitute a fundamental
breakdown in the hierarchal system of our appellate courts, which is designed
precisely to prevent different results reached from substantially the same facts. Id.
(2) Florida Courts historically issued writs of certiorari to review conflicts in lower appellate decisions.
11 Not only does the United States Supreme Court routinely issue writs of
certiorari to review conflict, but the Florida Supreme Court also historically issued
writs of certiorari to review conflict.
In Lake v. Lake, 103 So. 2d 639, 643 (Fla. 1958), for example, the Florida
Supreme Court expressly acknowledged that it could issue a writ of certiorari
under Article V, §4(2), Florida Constitution (1957) to resolve a conflict on the face
of a district court opinion:
If in a particular case an opinion is rendered by a district court of appeal that prima facie conflicts with a decision of another district court of appeal or of the Supreme Court on the same point of law, the writ of certiorari may issue and, after study, may be discharged, or the decision of the district court of appeal may be quashed or modified to the end that any conflict may be reconciled.
Lake, 103 So. 2d at 643 (emphasis added). See also Foley v. Weaver Drugs,
Inc., 177 So. 2d 221, 225 (Fla. 1965) (holding that the Florida Supreme
Court “may review by conflict certiorari a per curiam judgment of
affirmance without opinion where an examination of the record proper
discloses that the legal effect of such per curiam affirmance is to create
conflict with a decision of this court or another district court of appeal”
(emphasis added)); Gibson v. Maloney, 231 So. 2d 823, 824 (Fla. 1970) (“It
is conflict of Decisions, not conflict of Opinions or reasons that supplies
jurisdiction for review by certiorari.” (Emphasis added)). While these
12 decisions were abrogated by the subsequent amendments to the constitution
which removed all certiorari jurisdiction from the Florida Supreme Court,6
they illustrate how conflict certiorari has been part of our constitutional
history.
Some may argue, however, that these cases involved “constitutional
certiorari” under constitutional provisions that expressly authorized the Supreme
Court to review conflict by certiorari. Art. V, §4(2), Fla. Const. (1957) (“The
Supreme Court may review by certiorari any decision of a district court of appeal .
. . that is in direct conflict with a decision of another district court of appeal or of
the Supreme Court on the same point of law.”). This “constitutional certiorari,” it
may be argued, provides an expanded form of certiorari including a broader type of
review than that provided by the “common law certiorari” that the current
constitution provides to district courts of appeal.
This argument conflicts with other case law. While there may be
differences between “constitutional certiorari” and “common law certiorari,” the
language in the constitution as of 1957 providing for the issuance of certiorari
based on conflict is a type of certiorari that is more restrictive – not more
6The holdings of these cases were abrogated by the 1980 Amendments to Article V, § 3(b)(3), Florida Constitution. See, e.g., Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980).
13 expansive – than common law certiorari. The drafters granted the Florida Supreme
Court the discretion to issue the writ – not in general – but only in certain limited
circumstances including conflict. This is the only explanation that reconciles the
Lake line of cases with the Supreme Court’s contemporaneous decision in De
Groot v. Sheffield, 95 So. 2d 912, 915 (Fla. 1957). In De Groot, the Supreme
Court concluded that a party to an administrative proceeding was entitled to an
appeal as a matter of right because the proceeding was quasi-judicial in nature. No
statute provided the means for appeal, however, so the Florida Supreme Court held
that the proper vehicle to provide the missing plenary appeal was the circuit court’s
discretion to issue a common law writ of certiorari. Id. at 915-16 (“The writ is
available to obtain review in such situations when no other method of appeal is
available.”).
In subsequent decisions, the Supreme Court made clear that this use of
common law certiorari was not subject to the restrictive standard often associated
with common law certiorari in other contexts: “[a]lthough termed ‘certiorari’
review, review at this level is not discretionary but rather is a matter of right and is
akin in many respects to a plenary appeal.” Fla. Power & Light Co. v. City of
Dania, 761 So. 2d 1089, 1092 (Fla. 2000). The Florida Supreme Court
subsequently codified the De Groot line of cases in Rule 9.100(c)(2) of the Florida
14 Rules of Appellate Procedure where it remains today. Indeed, common law
certiorari has provided a plenary appeal as of right in other circumstances as well.7
If common law certiorari can provide a plenary appeal in the appropriate
circumstances, it must necessarily be available to provide a less-than-plenary,
discretionary review to resolve conflicts, in appropriate circumstances. Thus, just
as common law certiorari could be used to provide the required but missing
plenary appeal in De Groot, it can be used to provide a less-than-plenary appeal
based on an express conflict when necessary to avoid the current situation in which
“there may never be ‘clearly established principles of law’ governing a wide array
of county court issues.”
(3) Issuing a writ of certiorari to resolve a conflict in circuit court appellate decisions is not a second appeal because the review focuses on clarifying the law and not the outcome for the litigants.
The main objection to granting certiorari to review a conflict is that it may
allow a “second appeal.” See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d
7 For example, certiorari as an appeal of right is available to obtain first-tier appellate review of a circuit court appellate decision to award attorney’s fees or disqualify counsel. See, e.g., City of Miami Beach v. Deutzman, 180 So. 3d 245, 245-46 (Fla. 3d DCA 2015) (“The order was the first ruling on the question of attorneys’ fees. Properly viewed, our proceeding is not the second, but rather the first tier of appellate review.”).
15 1086, 1092-93 (Fla. 2010). But as the Supreme Court explained in Lake, the grant
of certiorari to resolve a conflict is not a second appeal because the focus is no
longer on resolving the dispute between the parties but instead on resolving the
conflict in the law.
In Lake, the Supreme Court emphasized the importance of not granting a
second appeal, which is both wasteful and abusive: “[w]hen a party wins in the
trial court he must be prepared to face his opponent in the appellate court, but if he
succeeds there, he should not be compelled the second time to undergo the expense
and delay of another review.” Lake, 103 So. 2d at 642. A party, the Court
concluded, “is not entitled to two appeals.” Id. But the Court in Lake further
explained that issuing a writ of certiorari to resolve a conflict is not a second
appeal because such review “deal[s] with matters of concern beyond the interests
of the immediate litigants.” Id. When granting certiorari to resolve a conflict
between appellate decisions, “at this late day in the progress of the litigation the
standardization of decisions on the same point of law will have become primary,
the effect upon the immediate litigants consequential.” Id. at 643.
Perhaps the most-cited reason why second-tier certiorari cannot be allowed
to become a second appeal is that doing so would afford a litigant in the county
court (which is a trial court of limited jurisdiction) more appeals than a litigant in
16 the circuit court (which is a trial court of general jurisdiction).8 But issuing the writ
to resolve conflict does not give a county court litigant more appellate
opportunities than the circuit court litigant because the circuit court litigant has the
right to seek further review if the district court’s review of its case leads to an
opinion that conflicts with the decision of another district.
The issuance of a writ of certiorari by a district court to resolve conflicts in
circuit court appellate decisions is no more the granting of a second appeal than the
Supreme Court’s exercise of conflict jurisdiction to resolve conflicts among district
court decisions. Far from being a usurpation of the district court’s jurisdiction and
prerogative as a final appellate court, conflict certiorari is a proper and necessary
adjunct to it. Thus, granting a petition for writ of certiorari to resolve conflicts does
not equate to granting a second appeal.
(4) The current standard for second-tier certiorari allows review to resolve conflicts in lower appellate decisions.
8 “The policy behind this rule is simple. . . . If, in cases originating in courts inferior to the circuit courts, another appeal from the circuit court is afforded in the guise of certiorari, then a litigant will have two appeals from the court of limited jurisdiction, while a litigant would be limited to only one appeal in cases originating in the trial court of general jurisdiction.” Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 526 n.4 (Fla. 1995); see, e.g., Custer, 62 So. 3d at 1093 (“A more expansive review would also afford a litigant two appeals from a court of limited jurisdiction, while limiting a litigant to only one appeal in cases originating in a trial court of general jurisdiction.”).
17 Finally, I believe the current standard for second-tier certiorari includes
discretionary review to resolve express and direct conflicts among circuit court
appellate opinions. The standard for second-tier certiorari is whether the circuit
court’s decision denies procedural due process or departs from the essential
requirements of law resulting in a miscarriage of justice. Custer, 62 So. 3d at 1092.
When applying this test, the Florida Supreme Court “has repeatedly emphasized
that district courts must be allowed a large degree of discretion so that they may
judge each case individually.” Nader v. Fla. Dep’t of Highway Safety & Motor
Vehicles, 87 So. 3d 712, 726 (Fla. 2012) (quotation omitted). In fact, for this very
reason, the Supreme Court has held that it is impossible to create an exhaustive list
of circumstances under which second-tier certiorari should issue. Id.
While a court considering issuing the writ must “not usurp the authority of
the trial judge or the role of any other appellate remedy, [it must] preserve the
function of this great writ of review as a ‘backstop’ to correct grievous errors that,
for a variety of reasons, are not otherwise effectively subject to review.” Custer, 62
So. 3d at 1092 (quoting Haines City Cmty. Dev. V. Heggs, 658 So. 2d 523, 531
n.14). “Thus, the district court’s exercise of its discretionary certiorari jurisdiction
should ‘depend on the court’s assessment of the gravity of the error and the
18 adequacy of other relief.’” Custer, 62 So. 3d at 1092 (quoting Heggs, 658 So. 2d at
531 n.14).
Concerning the gravity of error, it is hard to imagine a more grievous error
than to allow identical cases in the same court to be decided differently based upon
conflicting appellate decisions. Our entire system of hierarchal appellate courts is
designed to prevent this injustice. Such a result constitutes a miscarriage of justice
reflecting a departure from the most essential requirement of law—equality before
the law. It undermines the credibility of the courts in the eyes of the general public
because such conflicting results look at best like whimsy and at worst judicial
tyranny. The dramatic and wide-reaching ramifications of the failure to allow
review to resolve conflicts and thus by omission to cause identically situated
litigants to receive conflicting outcomes is “sufficiently egregious or fundamental
to merit the extra review and safeguard provided by certiorari.” Nader, 87 So. 3d at
727 (quotation omitted).
Concerning the adequacy of relief, there is no other suitable method of
review. The county court’s authority to certify issues of great public importance
directly to the district courts of appeal is not adequate. The Second District in
Stilson and the Florida Supreme Court in Ivey both acknowledged the existence of
the county court’s authority in this regard, and they both still concluded that “there
19 may never be ‘clearly established principles of law’ governing a wide array of
county court issues, including PIP issues.” Ivey, 774 So. 2d at 683; Stilson, 692 So.
2d at 983. These statements by the Second District and the Florida Supreme Court
confirm that the county court’s ability to certify is not a solution. Unless one finds
acceptable the idea that “there may never be ‘clearly established principles of law’
governing a wide array of county court issues, including PIP issues,” the
inescapable conclusion is that county court certification is simply not an adequate
remedy for circuit court appellate conflicts.
This conclusion is borne out by experience. While the conflicting legal
precedents in the circuit court at issue in this case were ultimately resolved by this
court based on a county court certification, the conflict at issue here festered in the
circuit court for years, causing identically situated parties who filed or defended
9See, e.g., Allstate Ins. Co. v. Gables Ins. Recovery Inc., a/a/o Moran, No. 13-305 AP (Fla. 11th Cir. Ct. May 18, 2016) (policy language not sufficient) (Lederman, Cohen, and Prescott, JJ.); Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI LLC, a/a/o Blake, 23 Fla. L. Weekly Supp. 683 (Fla. 11th Cir. Ct. Dec. 7, 2015) (policy language not sufficient) (Hogan-Scola, Cueto, and Orshan, JJ.); Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI LLC, a/a/o Politesse, 21 Fla. L. Weekly Supp. 989 (Fla. 11th Cir. Ct. June 23, 2014) (policy language sufficient) (Korvick, Bloom, and Walsh, JJ.); Allstate Indem. Co. v. Gables Ins. Recovery, Inc., a/a/o Jimenez, 22 Fla. L. Weekly Supp. 1146 (Fla. 11th Cir. Ct. June 8, 2015) (policy language sufficient) (Bernstein, Hendon, and Manno Schurr, JJ.); Allstate Prop. & Cas. Ins. Co. v. Royal Diagnostic Ctr. Inc., a/a/o Mondy, 21 Fla. L. Weekly Supp. 627 (Fla. 11th Cir. Ct. Apr. 3, 2014) (policy language sufficient) (Smith, Lobree, and Verde, JJ.).
20 suits in the same county court to receive diametrically different outcomes.9 And
that resolution would not have helped the litigants in this case, but for our issuance
of the writ. The history of this case and the many related cases show that the
county court’s authority to certify is not adequate to provide a timely resolution of
the conflict.
On reflection, this fact should have been obvious from the beginning.
Examination of the Florida Supreme Court’s jurisdiction to review district court
decisions suggests that the drafters never viewed a court’s jurisdiction to review
certified questions as an adequate replacement for a court’s jurisdiction to resolve
conflict. When the drafters removed the Florida Supreme Court’s authority to issue
writs of certiorari, they provided the Florida Supreme Court both the discretion to
review certified issues and, separately, the discretion to review conflicts between
the district courts. See Art. V, §§ 3(b)(3), (4), (7), (8), Fla. Const. The drafters
would not have provided both avenues for review if they believed review by
certification adequately addressed the need for review of conflicts.
The drafters clearly believed both certification and conflict jurisdiction were
needed to replace the certiorari jurisdiction that they removed from the Florida
Supreme Court. And history proved them right. In calendar year 2015, for
example, the Florida Supreme Court reviewed 33 cases certified as having great
21 public importance but 864 cases based on conflict.10 As these figures show, the
Supreme Court considers over 25 times more cases under conflict jurisdiction than
certification jurisdiction. These court statistics indicate that the discretion to review
certified questions is not an adequate replacement for the discretion to review
conflicts. Thus, it appears counterintuitive to conclude that the drafters, while
realizing that certification and conflict jurisdiction were needed to replace
certiorari jurisdiction, somehow intended to remove conflict jurisdiction when they
left district courts with certiorari review.
For this reason, I do not believe the county court’s authority to certify issues
of great public importance is adequate to address conflicts in the circuit courts. En
banc review by a circuit court is similarly inadequate.11 Therefore, when
considering “the adequacy of other relief,” I can only conclude there is no other
adequate relief for conflicts among appellate decisions of the circuit courts within a
district except issuing the writ.
10Florida Supreme Court, Supreme Court Monthly/Term/Yearly Statistics for the Period 01/01/2015 – 12/31/2015, http://www.floridasupremecourt.org/pub_info/documents/caseload/2015_Florida_ Supreme_Court_Caseload.pdf (last visited March 15, 2017). 11To begin with, there is no authorizing rule. More importantly, in most circuits, such a rule would be “be impractical because of the large number of circuit judges that would be involved.” State v. Lopez, 633 So. 2d 1150, 1151 (Fla. 5th DCA 1994). Finally, en banc review would not resolve conflicts between circuits in a district.
22 Thus, based on both “the gravity of the error and the adequacy of other
relief[,]” Custer, 62 So. 3d at 1092, a district court has the discretion to issue a writ
of certiorari to review a circuit court appellate decision that expressly and directly
conflicts with another circuit court in the same district.
Conclusion
The county courts and the circuit courts acting in their appellate capacity
deal with issues that touch the lives of the people of Florida in crucial ways. It is
imperative that clear precedents be available to the judges and litigants doing this
vital work. As judges, we cannot accept a system of appellate review in which
“there may never be ‘clearly established principles of law’ governing a wide array
of county court issues.” See Ivey, 774 So. 2d at 683. Like judge-made rules of
procedure, judge-made interpretations of common law writs “should never be
permitted to become so technical, fossilized, and antiquated that they obscure the
justice of the cause and lead to results that bring its administration into disrepute.”
In re Gottschalk’s Estate, 196 So. 844, 844 (Fla. 1940).
Rather than resign ourselves to an unacceptable situation, condemn litigants
to unequal treatment, and stand by while the prestige and credibility of the courts
degrades in the eyes of the public, the courts should develop this judge-made law
to serve the needs of the courts, litigants, and people as they have in the past. See,
23 e.g., De Groot, 95 So. 2d at 915. Because unresolved conflicts in the appellate
decisions of the circuit courts create miscarriages of justice and no other adequate
remedy exists, the issuance of a writ of certiorari properly serves as the backstop to
prevent this sort of grievous error.
24 Allstate Fire & Casualty Insurance Company v. Hallandale Open MRI, LLC Case No. 3D16-38
SCALES, J., dissenting.
It is hard to disagree with the result of the majority’s opinion on rehearing in
this case. After all, by granting the petition, the majority has promoted the ideals of
fairness and consistency; that is, these parties will be treated just like parties whose
disputes arose after the Florida Supreme Court’s opinion in Allstate Insurance Co.
v. Orthopedic Specialists, No. SC15-2298 (Fla. Jan. 26, 2017).
Florida’s county courts have adjudicated numerous PIP
reimbursement disputes based on Allstate’s policy language. While each litigated
policy contained exactly the same language, sometimes Allstate won and
sometimes Allstate lost.12 From now on, Allstate will prevail in these disputes
under the Florida Supreme Court’s opinion in Orthopedic Specialists.
By granting Allstate’s petition and issuing the writ, however, the majority
has given Allstate the retroactive benefit of this Supreme Court opinion. In my
view, this marks an unprecedented exercise of this Court’s certiorari jurisdiction
and conflicts with the Florida Supreme Court’s certiorari dictates in Custer
Medical Center v. United Auto Insurance Co., 62 So. 3d 1086 (Fla. 2010).
12Allstate lost this particular case in county court on April 8, 2014. Allstate lost its appeal to circuit court on December 7, 2015.
25 Florida’s retroactivity jurisprudence is well settled. When, as in Orthopedic
Specialists, the Supreme Court does not make its adjudication retroactive, parties
whose cases were decided prior to the Supreme Court’s resolution of the
conflict are neither entitled to the benefit, nor saddled with the detriment, of the
Supreme Court’s determination. See Petrysian v. Metro. Gen. Ins. Co., 672 So. 2d
562, 563 (Fla. 5th DCA 1996) (“A change in the applicable rule of law resulting
from a later appellate decision in an unrelated case is not a ground to vacate a final
order. We regret that appellant was frustrated by the timing of the supreme court’s
decisions, but we cannot grant relief from the application of the law as it existed at
the time of her appeal.”) (citation omitted). Admittedly, this circumstance might
seem unfair to folks who would have won had the higher court ruled sooner, or if
their particular appellate tribunal had more presciently predicted how the higher
court ultimately would rule.
But this unfairness – or dissonance – is simply not error subject to a second-
tier certiorari writ. In fact, it is not error at all. As the majority concedes, the circuit
court in this case did not depart from the essential requirements of law. See
majority opinion at 3-4. Employing a de novo standard of review, the circuit
court’s appellate division relied upon appropriate precedent to affirm the trial
court’s construction of Allstate’s insurance policy. The appellate court’s only
26 “error” was failing to accurately predict which of two persuasive, yet competing,
precedents the Florida Supreme Court ultimately would adopt. Divergent results
happen when a state has multiple, independent appellate districts, and each district
has multiple appellate divisions.
In my view, the majority greatly expands the purview of the writ in order to
ensure that Allstate gains the benefit of a Supreme Court case decided almost three
years after Allstate’s case was adjudicated, and over a year after Allstate lost its
appeal. While a party with a pending appeal is generally entitled to the benefit of a
change of decisional authority, Santana v. Fla. Dep’t of Fin. Servs., 61 So. 3d 1262
(Fla. 3d DCA 2011), a party such as Allstate, whose appeal is final, is not entitled
to the benefit of a post-appeal change in decisional authority. Petrysian, 672 So. 2d
at 563; Theisen v. Old Republic Ins. Co., 468 So. 2d 434, 435 (Fla. 5th DCA
1985). This Court’s granting discretionary review and issuing a second-tier
certiorari writ to give Allstate the benefit of Orthopedic Specialists is tantamount
to giving Allstate an unauthorized “second appeal.” See Stilson v. Allstate Ins. Co.,
692 So. 2d 979, 982 (Fla. 2d DCA 1997) (“It is well-established that certiorari
should not be used as a vehicle for a second appeal in a typical case tried in county
court.”). The majority gives Allstate this benefit despite Custer Medical Center’s
clear directive that second tier-certiorari review is severely limited, and despite the
27 appellate tribunal not having in any way departed from the essential requirements
of law.13
I respectfully dissent and would not grant certiorari review. As well
articulated by the majority and concurring opinions in this case, however, I
recognize the importance of consistency within Florida’s appellate districts.
Therefore, I would certify to the Florida Supreme Court, as a question of great
public importance, whether second-tier certiorari is appropriate to review (i) intra-
circuit and intra-district conflicts, and (ii) lower court appellate decisions in
conflict with later determinations of higher courts.
13“[A] district court should exercise its discretion to grant review only when the lower tribunal has violated a clearly established principle of law resulting in a miscarriage of justice.” Custer Med. Ctr., 62 So. 3d at 1092 (citations omitted) (emphasis added).