Allstate Fire and Casualty Ins. Co. v. Hallandale Open Mri, LLC , 253 So. 3d 36 ( 2017 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed November 29, 2017.
    This Opinion is not final until disposition of any further motion
    for rehearing and/or motion for rehearing en banc.
    Any previously-filed motion for rehearing en banc is deemed moot.
    ________________
    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.
    On Petition for Writ of Certiorari from 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 Motions for Rehearing and for Certification
    On consideration of the respondent’s motion for rehearing and motion to
    certify questions of great public importance, and the response, we withdraw our
    opinion in this case issued April 19, 2017, 1 and replace it with the opinion which
    follows.
    I.    The Underlying Legal Issue and Final County Court Judgment
    This case involves a dispute between Allstate Fire and Casualty Insurance
    Company (“Allstate”) and a medical provider (Hallandale Open MRI, or
    “Hallandale”) regarding a single legal issue: whether a personal injury protection
    (“PIP”) automobile insurance policy issued by Allstate contains language
    sufficiently specific to limit provider reimbursements to 80% of the maximum
    charges described in section 627.736(5)(a)2.f., Florida Statutes (2013). The issue
    arose in the Miami-Dade County Court, based on stipulated facts pertaining to the
    policy and the medical services provided by Hallandale. In October 2013—a time
    when this Court had not ruled on the specific legal issue presented to the County
    Court—the County Court issued a directed verdict for Hallandale (determining that
    1
    Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, 42 Fla. L. Weekly
    D893 (Fla. 3d DCA Apr. 19, 2017).
    2
    the Allstate policy language was insufficiently specific to invoke the statutory
    limitations on payment) and entered final judgment for Hallandale in the amount of
    $407.26, plus prejudgment interest.
    II.    Allstate’s Appeal to the Circuit Court Appellate Division
    Allstate appealed to the appellate division of the Miami-Dade Circuit Court.
    Allstate did not seek a stay pending review, and Hallandale did not seek execution
    or other enforcement of the County Court judgment. In December 2015, the three-
    judge Circuit Court appellate division panel affirmed the final judgment against
    Allstate. The five-page opinion affirming the County Court judgment surveyed
    pertinent case law from the Florida Supreme Court and several of Florida’s District
    Courts of Appeal.
    In Geico General Insurance Co. v. Virtual Imaging Services, Inc., 
    141 So. 3d 147
    , 159 (Fla. 2013), the Florida Supreme Court held that PIP insurers were required
    to notify insureds by specifically electing the limitations in the Medicare fee
    schedules in order to apply them to medical reimbursement claims. The appellate
    division then observed that the First and Fourth District Courts of Appeal had issued
    conflicting decisions regarding the sufficiency of such notice, in Allstate Fire &
    Casualty Insurance v. Stand-Up MRI of Tallahassee, P.A., 
    188 So. 3d 1
    (Fla. 1st
    DCA 2015) (policy provided legally sufficient notice), and Orthopedic Specialists
    3
    v. Allstate Insurance Co., 
    177 So. 3d 19
    (Fla. 4th DCA 2015) (identical policy
    language not legally sufficient). The appellate division also noted that this Court
    had not issued a controlling decision on the issue.
    After surveying the reported decisions, the Circuit Court appellate division
    found the policy language insufficient to support the statutory limitation computed
    using the Medicare fee schedules and, as already noted, affirmed the County Court
    final judgment in favor of Hallandale. In early 2016, Allstate filed a petition seeking
    second-tier certiorari from the appellate division decision. Allstate’s petition cited
    four Miami-Dade Circuit Court appellate division opinions that directly conflicted
    with the appellate division decision (and on the specific, controlling legal issue
    within the decision) involved in the present case. 2
    Hallandale opposed the second-tier petition on jurisdictional and substantive
    grounds.   Allstate did not seek a stay of enforcement of the County Court’s
    2
    Allstate Prop. & Cas. Ins. Co. v. Royal Diagnostic Ctr., Inc. a/a/o Mondy, 
    21 Fla. L
    . Weekly Supp. 627a (Fla. 11th Cir. Ct. April 3, 2014); Allstate Fire & Cas. Ins.
    Co. v. Hallandale Open MRI LLC a/a/o Politesse, 
    21 Fla. L
    . Weekly Supp. 989a
    (Fla. 11th Cir. Ct. June 23, 2014); Allstate Prop. & Cas. Co. v. Royal Diagnostic
    Ctr., Inc. a/a/o Leon, 
    22 Fla. L. Weekly Supp. 787a
    (Fla. 11th Cir. Ct. January 29,
    2015); and Allstate Indem. Co. v. Gables Ins. Recov., Inc. a/a/o Jimenez, 
    22 Fla. L
    .
    Weekly Supp. 1146a (Fla. 11th Cir. Ct. June 8, 2015).
    4
    judgment, nor did Hallandale seek to enforce the judgment, while the petition was
    pending.
    III.   Florida Supreme Court Accepts Review of the Conflict Cases from the
    First and Fourth Districts
    On January 20, 2016, the Florida Supreme Court accepted jurisdiction to
    review the two 2015 District Court of Appeal conflict cases from the First and Fourth
    Districts, Stand-Up MRI and Orthopedic Specialists, cited above. Allstate Ins. Co.
    v. Orthopedic Specialists, No. SC15-2298 (Fla. Jan. 20, 2016) (accepting
    jurisdiction). A decision resolving the conflict issue was issued in January 2017
    (discussed further below). Allstate Ins. Co. v. Orthopedic Specialists, 
    212 So. 3d 973
    (Fla. 2017).
    IV.    An Intervening Decision by This Court on the Conflict Issue
    While the petition for second-tier certiorari was pending in this Court and the
    conflict case was pending in the Florida Supreme Court, a panel of this Court issued
    a decision on the same issue, as certified by the Miami-Dade County Court for direct
    review under Florida Rule of Appellate Procedure 9.030(b)(4)(A) (discretionary
    review of an order certified by the county court to be of great public importance).
    Fla. Wellness & Rehab. v. Allstate Fire & Cas. Ins. Co., 
    201 So. 3d 169
    (Fla. 3d
    DCA 2016) (holding that the Allstate policy language was clear and unambiguous,
    5
    as determined by the First District in Stand-Up MRI). That decision, issued in July
    2016, also certified conflict with the Fourth District opinion in Orthopedic
    Specialists.
    IV.      This Court’s Dismissal of Allstate’s Petition
    Two months after this Court’s opinion deciding the conflict issue, but while
    the conflict was still pending before the Florida Supreme Court, we dismissed
    Allstate’s petition for lack of jurisdiction. Judge Logue dissented in an opinion
    which stressed the importance of exercising jurisdiction when the County Court and
    Circuit Court appellate division decisions on an issue are conflicting, and
    particularly when the District Court for that district has issued an opinion resolving
    the conflict. Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, 
    208 So. 3d
    741 (Fla. 3d DCA 2016). Applying Florida Supreme Court case law limiting our
    exercise of second-tier certiorari jurisdiction, particularly 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 concluded that the
    Circuit Court appellate division panel had not violated any clearly established
    principle of law resulting in a miscarriage of justice. 
    Custer, 62 So. 3d at 1092
    .
    Although this Court had by then decided the conflict issue in favor of
    Allstate’s position, the Florida Supreme Court had not yet ruled on the conflict at
    6
    that time, and we observed that the Circuit Court appellate division did not have our
    decision before it when it ruled at the end of 2015.
    V.     Allstate’s Motion for Rehearing; the Supreme Court’s Opinion
    In November 2016, Allstate moved for rehearing and rehearing en banc
    regarding our dismissal opinion, contending that we had jurisdiction to consider the
    petition for second-tier certiorari and that our own decision on the merits of the
    conflict issue required us to quash the Circuit Court appellate division’s decision.
    While those motions were being briefed and considered, the Florida Supreme Court
    issued its decision on the conflict issue, Allstate Insurance Co. v. Orthopedic
    Specialists, 
    212 So. 3d 973
    (Fla. 2017). That decision concluded that Allstate’s
    policy language on reimbursement limitations under the PIP statute was legally
    sufficient and not ambiguous, a decision consistent with this Court’s panel decision
    in Florida Wellness a few months earlier, and contrary to the Circuit Court appellate
    division opinion under consideration in the present case.
    Had the Florida Supreme Court’s opinion on the conflict issue or this Court’s
    opinion on that issue been available to the Circuit Court appellate division as it
    considered the question in late 2015, the appellate division panel would have been
    duty bound to follow either of those decisions. Given the continued, apparent
    7
    willingness of Allstate and Hallandale3 to continue the proceedings in the present
    case, however, we initially concluded that the Florida Supreme Court’s resolution of
    the conflict issue in January 2017 compelled a new analysis and different result.
    Allstate’s motion for rehearing, supplemented by the Supreme Court opinion
    in its favor, persuaded a majority of this panel that we should take jurisdiction of the
    petition for second-tier certiorari, apply that decision to the same issue presented in
    the petition, and quash the December 2015 Circuit Court appellate division decision
    in favor of Hallandale. We granted Allstate’s motion for rehearing, exercised
    jurisdiction, and applied Orthopedic Specialists as proposed by Allstate. Allstate
    Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, 42 Fla. L. Weekly D893 (Fla.
    3d DCA Apr. 19, 2017). 4
    In a vigorous dissent, Judge Scales focused on the retroactive effect of such a
    result and the absence of error in the appellate division’s decision at the time it
    considered the case and issued its opinion:
    3
    Hallandale took no action to collect the judgment, or to compel Allstate to post a
    supersedeas bond, throughout this process.
    4
    In a concurring opinion, Judge Logue maintained his position that this Court had
    jurisdiction to resolve the conflict in reported decisions of the Miami-Dade Circuit
    Court appellate division from the outset, and that the initial dismissal of the petition
    for second-tier certiorari was incorrect.
    8
    Employing a de novo standard of review, the circuit court’s appellate
    division relied upon the appropriate precedent to affirm the trial court’s
    construction of Allstate’s insurance policy. The appellate court’s only
    “error” was failing to accurately predict which of two persuasive, yet
    competing, precedents the Florida Supreme Court ultimately would
    adopt.
    
    Id. at D897
    (Scales, J., dissenting).
    VI.   Hallandale’s Motion for Rehearing and Certification
    Hallandale then moved for rehearing, rehearing en banc, and certification of
    two questions of great public importance5 to the Florida Supreme Court:
    DOES A DISTRICT COURT’S SECOND-TIER CERTIORARI
    JURISDICTION EXTEND TO REVIEW A CIRCUIT APPELLATE
    COURT’S DECISION THAT DOES NOT CONSTITUTE A
    DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF
    LAW, BUT RATHER CHOSE BETWEEN TWO NON-BINDING
    DISTRICT COURT DECISIONS IN THE ABSENCE OF A
    BINDING DECISION FROM THE DISTRICT IN WHICH THE
    CIRCUIT COURT SITS?
    CAN A FLORIDA SUPREME COURT DECISION BE APPLIED
    RETROACTIVELY TO A CIRCUIT COURT APPELLATE
    DECISION THAT BECAME FINAL, AND WHICH DOES NOT
    DEPART FROM THE ESSENTIAL REQUIREMENTS OF LAW,
    PRIOR TO THE FLORIDA SUPREME COURT’S ISSUANCE OF
    ITS DECISION?
    In these motions, Hallandale emphasized that the present case is not a
    “pipeline” case or one in which the county court judgment is anything other than a
    5
    Fla. R. App. P. 9.030(a)(2)(A)(v).
    9
    final judgment.     “In short, as the dissent eloquently recognizes, retroactive
    application of the Florida Supreme Court’s decision to a case that already has
    reached its appellate finality is simply not supported by the law.” Respondent
    Hallandale’s Mot. For Reh’g, etc., 5 (May 4, 2017). Upon consideration of the
    motions and Allstate’s response, a majority of the panel has concluded that
    Hallandale’s arguments are well taken.
    VII. Conclusion
    For these reasons, on rehearing we dismiss Allstate’s petition for certiorari
    taken from the decision of the Circuit Court appellate division for lack of
    jurisdiction. 6 Our colleague’s dissenting opinion makes the important argument that
    second-tier certiorari jurisdiction should extend to pending intra-district appellate
    division conflict cases for the same reason that the district courts may hear appeals
    en banc, and for the same reason that the Florida Supreme Court exercises
    jurisdiction to resolve conflicting decisions among the district courts.
    On the motion for certification of questions of great public importance, we
    certify a single, rephrased question as follows:
    DOES A DISTRICT COURT OF APPEAL HAVE JURISDICTION
    TO GRANT A PETITION FOR SECOND-TIER CERTIORARI IN A
    CASE IN WHICH THERE IS DIRECT CONFLICT ON A
    6
    Under this Court’s Internal Operating Procedures, the issuance of this opinion on
    rehearing is deemed a denial as moot of Hallandale’s motion for rehearing en banc.
    10
    DETERMINATIVE ISSUE AS BETWEEN (A) THE CIRCUIT
    COURT APPELLATE DIVISION CASE WHICH IS THE SUBJECT
    OF THE SECOND-TIER PETITION, AND (B) A DECISION BY A
    DIFFERENT CIRCUIT COURT APPELLATE DIVISION PANEL
    WITHIN THE SAME DISTRICT, WHEN EACH OF THE
    CONFLICTING DECISIONS WAS RENDERED IN THE ABSENCE
    OF A CONTROLLING DECISION BY THE DISTRICT COURT
    FOR THAT DISTRICT?
    Motion for rehearing granted; petition dismissed; question certified to the
    Florida Supreme Court as a question of great public importance.
    SCALES, J., concurs.
    11
    Allstate Fire & Casualty Insurance Company vs. Hallandale Open MRI, LLC
    Case No. 3D16-38
    LOGUE, J., concurring in part and dissenting in part.
    I fully concur that the question presented by the facts of this case be certified
    to the Florida Supreme Court as one of great public importance.
    As this case illustrates, circuit court judges sitting in an appellate capacity will
    often issue rulings that conflict with the appellate rulings of other circuit court judges
    in the same circuit. Thus, as happened here, a person filing in county court and
    appealing to the circuit court obtains a result completely at odds with the result
    obtained by a different person filing in the exact same county court and appealing to
    the exact same circuit court. 7 Because there are no further appeals as of right, a
    litigant wins or loses based upon the predilections of the individual judges who heard
    the trial and appeal and not upon a coherent body of law that applies to all litigants.
    Here, this failure in the system is particularly unfortunate because the decision under
    review is contrary to a recent decision of the Florida Supreme Court.8 The question
    7
    Allstate 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”).
    8
    The decision conflicts with the subsequently decided case of Allstate Insurance
    Co. v. Orthopedic Specialists, 
    212 So. 3d 973
    , 974 (Fla. 2017).
    12
    certified by the majority properly provides the Florida Supreme Court a platform to
    decide whether and how to address this problem.
    Where I respectfully disagree with my brothers in the majority is that I believe
    an incorrect circuit court appellate decision in these circumstances – an incorrect
    legal decision that treats litigants differently than the same circuit court treated other
    similarly situated litigants – constitutes a departure from the most essential
    requirement of law: equality before the law. It results in exactly the type of
    miscarriage of justice without other remedy which certiorari exists to correct.
    In reaching a contrary result, the majority’s analysis is both logical and
    principled. But I give greater weight to the defining characteristic of common law
    certiorari whereby “the district courts must be allowed a large degree of discretion”
    to identify “legal errors serious enough to constitute a departure from the essential
    requirements of law.” Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 
    87 So. 3d 712
    , 722 (Fla. 2012) (quoting Haines City Cmty. Dev. v. Heggs, 
    658 So. 2d 523
    , 528 (Fla. 1995)). “It is this discretion which is the essential distinction between
    review by appeal and review by common-law certiorari.” 
    Id. at 722
    (quoting Combs
    v. State, 
    436 So. 2d 93
    , 95-96 (Fla. 1983)).
    I also believe the majority errs by looking solely from the perspective of the
    circuit court judges who made the incorrect appellate decision under review to
    13
    decide whether the incorrect decision departs from the essential requirements of law.
    Nader teaches that district courts of appeal must lift their vision when applying
    certiorari and also consider the need to facilitate Supreme Court review to ensure a
    clear body of binding precedent that treats all litigants properly and equally. 
    Nader, 87 So. 3d at 724-25
    (approving the district court’s finding of a departure from the
    essential requirements of law based in part on the “dramatic ramifications” of
    refusing further review by way of certiorari).
    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 outcome for the
    litigants; and (4) the current standard for second-tier certiorari permits review to
    resolve conflicts in lower appellate decisions.
    ANALYSIS
    (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
    14
    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 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 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
    15
    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.
    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, section 4(2), of the Florida Constitution (1957) to resolve a conflict on the
    face of a district court opinion:
    16
    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”); 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.”). While these decisions were abrogated by the subsequent
    amendments to the constitution which removed all certiorari jurisdiction from the
    Florida Supreme Court, 9 they illustrate how conflict certiorari has been part of our
    constitutional history. 10
    9
    The holdings of these cases were abrogated by the 1980 Amendments to article V,
    section 3(b)(3), of the Florida Constitution. See, e.g., Jenkins v. State, 
    385 So. 2d 1356
    , 1359 (Fla. 1980).
    10
    Some may argue 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
    17
    It should come as no surprise that certiorari is flexible enough to review
    conflicts. In the appropriate context, certiorari is flexible enough to provide a full-
    blown appeal of right. In De Groot v. Sheffield, 
    95 So. 2d 912
    , 915 (Fla. 1957), 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.”).
    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 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) discussed later in this opinion.
    18
    In subsequent decisions, the Florida 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 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.11
    Just as common law certiorari can be used to provide a required but missing
    plenary appeal as explained in De Groot, it can be used to provide a less-than-plenary
    review 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.”
    11
    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.”).
    19
    (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 1086
    , 1092-93 (Fla. 2010). But as the Florida 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
    20
    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 the
    circuit court (which is a trial court of general jurisdiction). 12 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
    12
    “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.” 
    Heggs, 658 So. 2d at 526
    n.4; 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.”).
    21
    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.
    Finally, I believe the current standard for second-tier certiorari includes
    discretionary review to quash incorrect decisions that conflict with other circuit court
    appellate opinions in the same circuit and district. 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
    . 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 
    Heggs, 658 So. 2d at 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 adequacy of other relief.’”
    
    Custer, 62 So. 3d at 1092
    (quoting 
    Heggs, 658 So. 2d at 531
    n.14).
    22
    The analysis concerning the gravity of the error cannot be reduced to a
    mechanical formula. The Supreme Court has explained that it is impossible to create
    an exhaustive list of the sort of egregious errors encompassed by second tier
    certiorari. Instead, “the district courts must be allowed a large degree of discretion”
    to identify “legal errors serious enough to constitute a departure from the essential
    requirements of law.” 
    Nader, 87 So. 3d at 722
    (quoting 
    Heggs, 658 So. 2d at 528
    ).
    This “discretion and flexibility” is necessary because “a reviewing court is drawing
    new lines and setting judicial policy as it individually determines those errors
    sufficiently egregious or fundamental to merit the extra review and safeguard
    provided by certiorari.” 
    Id. at 723.
    “It is this discretion which is the essential
    distinction between review by appeal and review by common-law certiorari.” 
    Id. at 722
    (quoting Combs v. State, 
    436 So. 2d 93
    , 95-96 (Fla. 1983)).
    Applying this discretion to identify errors sufficiently egregious to constitute
    a departure from the essential requirements of law, it is hard to imagine a more
    grievous error than to allow identical cases in the same county court to be decided
    differently based upon conflicting appellate decisions and to have identical appeals
    to the same circuit court be decided differently based upon conflicting circuit court
    appellate decisions. Moreover, as occurred here, because there is no process for
    further appeals, county court judges subsequently faced with similar issues are often
    23
    left to choose which of the conflicting circuit court appellate decisions they will
    follow in a particular case. Leaving the outcome of a person’s lawsuit to the
    predilection of individual judges, rather than to a coherent body of law that applies
    across the board to other persons filing lawsuits in the same court, constitutes a
    miscarriage of justice reflecting a departure from the most essential requirement of
    law: equality before the law.
    The only reason we have appellate courts is to prevent exactly this sort of
    injustice. An appellate system that fails to prevent such an injustice is not fulfilling
    its purpose. The existence of this problem undermines the credibility of the appellate
    courts in the eyes of the general public. Conflicting results with identical facts look
    at best like judicial whimsy, 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).
    In this regard, I believe the majority errs when it uses only the perspective of
    the circuit court judges who made the decision under review to determine whether
    their incorrect decision was a departure from the essential requirements of law. The
    Supreme Court in Nader clearly rejected such a mechanical approach.
    24
    In Nader, the Supreme Court upheld the Second District Court of Appeal’s
    issuance of a writ of certiorari quashing a circuit court appellate decision. The circuit
    court appellate decision under review in Nader followed the decision of another
    district court which was the only decision on point at the time. Id at 725. Looking
    from the perspective of the circuit court judges who made the decision under review,
    the circuit court judges clearly did not depart from the essential requirements of law
    because they were only doing what they were bound by law to do – obeying
    controlling precedent by following the only district court precedent on point. 
    Id. Nevertheless, the
    Supreme Court approved the issuance of a writ of certiorari to
    quash their decision. The Supreme Court did so by giving weight, not just to error
    from the perspective of the circuit court judges, but also to the “wide-reaching
    ramifications” of failing to provide for further review. In particular, the Supreme
    Court cited with approval to the Second District’s concern for the need to “authorize
    supreme court review” and establish “binding precedent” 
    Id. at 724-25,
    factors
    which the majority opinion here does not adequately credit.
    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
    25
    court’s authority in this regard, and they both still concluded that “there 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 suits
    in the same county court to receive diametrically different outcomes. 13 And that
    13
    See, 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
    26
    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.
    History proved the drafters right. In 2015, for example, the Florida Supreme
    Court reviewed 33 cases certified as having great public importance but 864 cases
    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.).
    27
    based on conflict.14 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.
    Some parts of the legal community are exploring other ways to address the
    problem. 15 Obviously, if and when another adequate solution to the problem of
    incorrect results in circuit court appeals which are inconsistent with other circuit
    court decisions in the same circuit and district becomes available, the analysis set
    forth in this opinion would suggest that second-tier certiorari would not be
    14
    Florida 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).
    15
    One idea being floated is to create en banc circuit court panels. In most circuits,
    such panels 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).
    But even if one untangled the problem of the size of such panels, en banc circuit
    court panels would not resolve conflicts between circuits within a district. Perhaps
    district-wide en banc circuit panels could be created drawn from, and with authority
    to bind, all circuits in a district. Such a panel, however, begins to resemble a district
    court of appeal, except that its decisions would not be reviewable by the Supreme
    Court. Any solution that fails to provide Supreme Court review to ensure ultimate
    state-wide uniformity is not adequate. In the final analysis, our court system must
    ensure there is only one body of law in Florida that applies equally to all persons
    within the jurisdiction of the Florida courts. While there may be other solutions to
    this problem, the simple and direct fix is second tier certiorari as described in this
    opinion.
    28
    appropriate because another remedy was available. At the present time, however,
    no such method is available. Therefore, when considering “the adequacy of other
    relief,” I can only conclude there is no other adequate relief at his time for incorrect
    circuit court appellate decisions that are inconsistent with other circuit court
    appellate decisions except certiorari.
    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 an incorrect circuit court appellate decision that expressly and
    directly conflicts with another circuit court appellate decision in the same district.
    CONCLUSION
    The county and 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
    29
    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 is
    lowered 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, e.g.,
    De 
    Groot, 95 So. 2d at 915
    . Because incorrect appellate decisions of the circuit courts
    which are inconsistent with prior decisions of the circuit courts in the same circuit
    and district constitute 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.
    30