FAMILY HEALTH CARE SOLUTIONS, INC., A/A/O JORGE DURAN v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY

• Court: District Court of Appeal of Florida
• Decided: October 26, 2022
• Docket: 21-0351
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 26, 2022. Not final until disposition of timely filed motion for rehearing.

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No. 3D21-351 Lower Tribunal No. 15-1914 SP ________________

Family Heath Care Solutions, Inc., a/a/o Jorge Duran, Appellant,

vs.

Allstate Property and Casualty Insurance Company, Appellee.

An Appeal from the County Court for Miami-Dade County, Milena Abreu, Judge.

Law Office of Chad A. Barr, P.A., and Chad A. Barr (Altamonte Springs), for appellant.

Shutts & Bowen LLP, and Daniel E. Nordby, Jason Gonzalez (Tallahassee), and Garrett A. Tozier (Tampa), for appellee.

Before EMAS, HENDON and GORDO, JJ.

PER CURIAM. Family Health Care Solutions, Inc. (“FHCS”) appeals final summary

judgment entered in favor of Allstate Fire and Casualty Insurance Co.

(“Allstate”) and the denial of FHCS’s motion for leave to amend its reply to

Allstate’s answer and affirmative defenses.

This appeal presents the same issue addressed by this court in First

Medical & Rehab of Bradenton, LLC v. Allstate Fire & Casualty Insurance

Co., 343 So. 3d 691 (Fla. 3d DCA 2022). Thus, as we held in First Medical,

we “affirm the entry of summary judgment to the extent the trial court found

that the polic[y] at issue provide[s] legally sufficient notice of the insurer’s

election to use the permissive fee schedules identified in section

627.736(5)(a)2., Florida Statutes (2009).” Id. at 692 (citing Allstate Ins. Co.

v. Orthopedic Specialists, 212 So. 3d 973, 979 (Fla. 2017)). We “otherwise

reverse, however, because the record is devoid of an affidavit, or any

summary judgment evidence, showing that Allstate paid pursuant to the fee

schedules.” Id. (citing Gonzalez v. Citizens Prop. Ins. Corp., 273 So. 3d

1031, 1036 (Fla. 3d DCA 2019)).

Affirmed in part, reversed in part, and remanded for further

proceedings consistent with this opinion.