STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. CC CHIROPRACTIC, LLC, a/a/o ISLANDE NAPOLEON , 245 So. 3d 755 ( 2018 )


Menu:
  •        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
    Petitioner,
    v.
    CC CHIROPRACTIC, LLC a/a/o ISLANDE NAPOLEON,
    Respondent.
    No. 4D18-221
    [March 14, 2018]
    Petition for writ of certiorari to the Seventeenth Judicial Circuit,
    Broward County; Martin Bidwill, Carlos Rodriguez and Raag Singhal,
    Judges; L.T. Case No. 16-9306 CACE (AP).
    Kenneth P. Hazouri of deBeaubien, Simmons, Knight, Mantzaris &
    Neal, LLP, Orlando, for petitioner.
    No response required for respondent.
    GROSS, J.
    State Farm Mutual Automobile Insurance Company petitions for
    second-tier certiorari review from an unelaborated appellate decision of
    the circuit court affirming a county court’s final judgment for a provider in
    an action for personal injury protection (PIP) benefits. We dismiss the
    petition because the standard for granting second-tier certiorari review is
    not met.
    Background
    In 2011, following an automobile accident, State Farm’s insured
    received chiropractic services from respondent, CC Chiropractic, LLC (“the
    provider”). Pursuant to an assignment of benefits from the insured, the
    provider directly billed State Farm $8,655 for the services.
    State Farm paid $4,572.75 in PIP benefits, which was 80% of the
    amount State Farm determined was reasonable. See § 627.736(1)(a), Fla.
    Stat. (2010) (requiring PIP insurers to pay “[e]ighty percent of all
    reasonable expenses for medically necessary medical, surgical, X-ray,
    dental, and rehabilitative services”).   In calculating the reasonable
    expenses, State Farm used 200% of the allowable amount under the 2011
    Medicare fee schedule. See § 627.736(5)(a)(2)(f) (allowing an insurer to
    limit reimbursement to 80 percent of “the allowable amount under the
    participating physicians schedule of Medicare Part B.”).
    In 2014, the provider filed a breach of contract action in county court
    seeking the full amount of its charges. The parties stipulated that the
    provider’s services were medically necessary and related to the insured’s
    accident.
    The provider moved for summary judgment arguing that State Farm
    had improperly applied the statutory cap on reimbursement because the
    fee schedule had not been incorporated into the policy in this case. See
    Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 
    141 So. 3d 147
    , 158 (Fla.
    2013) (concluding that insurer was not permitted to limit reimbursements
    to the Medicare fee schedules where the policy made no reference to the
    fee schedules and provided no notice of its election to use the fee
    schedules); see also Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 
    63 So. 3d 63
     (Fla. 4th DCA 2011). The provider contended that no genuine issue
    of material fact existed as to the reasonableness of its charges.
    The provider attached an affidavit from its corporate representative
    averring that the charges for each of the services was reasonable and
    within the usual and customary range for providers in that geographical
    area in 2011. The representative was the director of billing for the provider
    and for several similar facilities. According to the affidavit, he had
    reviewed market surveys and researched billing practices of other
    providers in the community. He had worked for more than 10 years in
    medical billing and had personal knowledge of the reasonable, usual, and
    customary prices charged by other providers in the community for the
    services at issue. The prices were based in part on the market surveys
    and the 75th percentile of the Physician Fee Reference Guide in 2010.
    State Farm filed a memorandum opposing summary judgment arguing
    that the reasonableness of the charges presented a jury question. In
    support of the motion, it filed an affidavit from a chiropractor (Dr. Bradley
    Simon) opining that the provider’s charges were excessive and
    unreasonable. Simon’s affidavit stated that he relied on his 15 years of
    experience providing chiropractic care in the community, the usual and
    customary charges and rates accepted by his practice, and his knowledge
    of the market and reimbursement rates in South Florida. He explained
    that during the last 4 to 5 years nearly all PIP insurers he had billed paid
    him 200% of the Medicare Part B fee schedule. He had accepted payments
    -2-
    from Health Maintenance Organizations (HMOs) at less than 100% of the
    Medicare fee schedule, and Preferred Provider Organizations (PPOs) have
    paid him at rates less than 200% of the Medicare schedule. He explained
    that, during the period at issue in this case, his own practice had
    voluntarily accepted the reimbursement rate used by State Farm in this
    case, and in his opinion, this reimbursement rate was reasonable. 1
    The county court entered an order granting the provider’s motion for
    summary judgment. The court agreed that there was no genuine issue of
    material fact as to the reasonableness of the charges. The court explained
    that the provider had met its initial burden of establishing that its charges
    were within the reasonable range for the services.
    The county court concluded that State Farm had not carried its burden
    of coming forward with contrary evidence to create a factual issue. The
    court noted that State Farm had not identified any authority, and the court
    was aware of none, supporting the argument that reasonableness of a
    provider’s charge in a PIP case is always a jury question. The court noted
    that multiple county courts had granted summary judgment as to
    reasonableness in PIP cases and had not been reversed by the circuit
    court. It also noted that, in United Auto. Ins. Co. v. Hallandale Open MRI,
    LLC, 
    145 So. 3d 997
     (Fla. 4th DCA 2014), this Court denied second-tier
    certiorari review of a circuit court’s affirmance of summary judgment on
    reasonableness in a PIP case. 2
    As to State Farm’s reliance on Dr. Simon’s affidavit, the county court
    ruled that Dr. Simon was not qualified to give an expert opinion on the
    reasonableness of the charges. The court found State Farm did not
    establish that Simon’s testimony satisfied section 90.702, Florida Statutes
    (2013), or Daubert v. Merrell Dow Pharm. Inc., 
    509 U.S. 579
     (1993), and its
    progeny, for admitting expert opinion testimony. The court noted that
    Simon’s affidavit relied on what he charges and what he has been
    reimbursed for identical services at his facility. The court found this
    testimony did not qualify to be admitted as expert opinion testimony and
    was more akin to “pure opinion” testimony that has been rejected by the
    legislature. See Perez v. Bell S. Telecomm., Inc., 
    138 So. 3d 492
    , 497 (Fla.
    3d DCA 2014). The court concluded, therefore, that Simon’s affidavit
    1  The affidavit states, “In many cases, my practice has and would continue to
    accept payment at less than the amount reimbursed by the carrier here. Based
    on this, it is my opinion that the fees billed in this case were excessive and
    unreasonable in regards to their price.”
    2  A denial of discretionary second-tier certiorari review should not be construed
    to mean that we approve of the underlying decisions.
    -3-
    could not be considered and did not create a genuine issue of material fact
    as to the reasonableness of the provider’s charges.
    The county court then entered a final judgment in the provider’s favor
    for $2,351.43 (the difference between 80% of the provider’s full charge and
    what State Farm had paid) plus pre-judgment interest.
    State Farm appealed to the circuit court. After full briefing, the circuit
    court issued a per curiam opinion affirming, without explanation. The
    circuit court denied State Farm’s motion for rehearing.
    State Farm now petitions this court for second-tier certiorari review of
    the circuit court’s appellate decision. 3 State Farm argues: (1) the circuit
    court disregarded evidentiary standards and burdens governing summary
    judgment proceedings, and Dr. Simon’s affidavit “unquestionably” created
    a triable issue of fact as to the reasonableness of the charges; (2) the circuit
    court’s alleged error in affirming the final judgment departs from the
    essential requirements of law resulting in a miscarriage of justice; and (3)
    the circuit court denied State Farm procedural due process by affirming
    the trial court’s decision to strike Dr. Simon’s testimony.
    Analysis
    The decision in this case is driven by the narrow scope of second-tier
    certiorari review of a circuit court acting in its appellate capacity. As we
    have previously observed:
    Second-tier certiorari is not a second appeal; it is
    extraordinarily limited, and narrow in scope. See Custer Med.
    Ctr. v. United Auto. Ins. Co., 
    62 So. 3d 1086
    , 1093–94 (Fla.
    2010); see also Achord v. Osceola Farms Co., 
    52 So. 3d 699
    (Fla. 4th DCA 2010). Review is limited to whether the circuit
    court afforded procedural due process and whether it applied
    the correct law, or stated another way, whether the court
    departed from a clearly established principle of law. Custer,
    
    62 So. 3d at 1092
    . To be a departure from a clearly
    established principle of law, the error must be so serious that
    it results in a miscarriage of justice. 
    Id. at 1093
    . Ordinary
    legal errors, or application of the correct law incorrectly under
    3   About the same time, the circuit court issued a number of opinions affirming
    judgments entered in the same or similar circumstances. Including this case,
    State Farm has filed a total of 58 second-tier certiorari petitions raising the same
    or similar arguments.
    -4-
    the facts, are not sufficient grounds for a district court to grant
    second-tier certiorari. 
    Id.
     Circuit courts are intended to have
    final appellate jurisdiction over county court cases.
    Advanced Chiropractic & Rehab. Ctr. Corp. v. United Auto. Ins. Co., 
    103 So. 3d 866
    , 868 (Fla. 4th DCA 2012).
    Here, State Farm’s appeal to the circuit court challenged the county
    court’s application of a procedural rule and an evidentiary statute: the
    former is reviewed de novo, and the latter under an abuse of discretion
    standard. Assuming that the county court made legal errors, the circuit
    court’s per curiam affirmance was not a violation of a clearly established
    principle of law resulting in a miscarriage of justice so as to permit our
    review by second-tier certiorari. See State v. Leroy, 
    819 So. 2d 169
    , 171
    (Fla. 4th DCA 2002); State Farm Mutual Auto. Ins. Co. v. Pembroke Pines
    MRI, Inc., 
    171 So. 3d 814
    , 817 (Fla. 4th DCA 2015).
    State Farm’s arguments for reversing the county court’s ruling amount
    to an attempt at a second appeal. State Farm fails to show that the circuit
    court failed to apply the correct law. At best, State Farm argues that the
    circuit court committed an ordinary legal error through its affirmance.
    Nothing shows that the circuit court applied the incorrect law as opposed
    to applying the correct law incorrectly under the facts.
    State Farm effectively asks us to review the correctness of the county
    court’s decision. Even if we agreed that State Farm had shown a genuine
    issue of material fact regarding the reasonableness of the charges, the
    limited scope of second-tier certiorari review does not permit us to grant a
    second appeal. We emphasize that, in declining review, we express no
    opinion on the correctness of the decisions below.
    Similarly, State Farm’s arguments concerning a denial of procedural
    due process are directed not at what occurred on appeal at the circuit
    court level, but at the proceedings in county court. State Farm contends
    that the county court denied State Farm its due process right to call Dr.
    Simon as a witness at trial.      This exceeds the scope of second-tier
    certiorari review. See Stranahan House, Inc. v. City of Fort Lauderdale, 
    967 So. 2d 1121
    , 1127 (Fla. 4th DCA 2007); Pharmcore, Inc. v. City of
    Hallandale Beach, 
    946 So. 2d 550
    , 552 (Fla. 4th DCA 2006). The petition
    does not show that the circuit court denied State Farm notice or a
    meaningful opportunity to be heard in the appeal.
    In addition, the circuit court’s per curiam affirmance means that “the
    decision cannot serve as precedent in another proceeding.” Stilson v.
    -5-
    Allstate Ins. Co., 
    692 So. 2d 979
    , 981 (Fla. 2d DCA 1997). This makes it
    unlikely to merit the extraordinary remedy of second-tier certiorari. Dep’t
    of Highway Safety & Motor Vehicles v. Hofer, 
    5 So. 3d 766
    , 772 (Fla. 2d
    DCA 2009) (“A circuit court's decision will generally not merit certiorari
    review if it is issued without a written opinion or is particularly fact-
    dependent or fact-specific because it lacks precedential value.”).
    The Florida Supreme Court has strongly cautioned district courts
    against expanding second-tier certiorari jurisdiction.
    “[A]ppellate courts must exercise caution not to expand
    certiorari jurisdiction to review the correctness of the circuit
    court’s decision.” Nader v. Dep’t of Highway Safety & Motor
    Vehs., 
    87 So. 3d 712
    , 723 (Fla. 2012); see also Haines City
    Cmty. Dev. v. Heggs, 
    658 So. 2d 523
    , 526 (Fla. 1995). “[T]he
    departure from the essential requirements of law necessary
    for the issuance of a writ of certiorari is something more than
    a simple legal error.” Allstate Ins. Co. v. Kaklamanos, 
    843 So. 2d 885
    , 889 (Fla. 2003) (citing Ivey v. Allstate Ins. Co., 
    774 So. 2d 679
    , 682 (Fla. 2000)). Certiorari is appropriate “only when
    there has been a violation of a clearly established principle of
    law resulting in a miscarriage of justice.” 
    Id.
    Futch v. Florida Dep’t of Highway Safety & Motor Vehicles, 
    189 So. 3d 131
    ,
    132 (Fla. 2016) (quashing a district court decision that granted second-
    tier certiorari where no miscarriage of justice existed). Here, State Farm
    asks us to expand certiorari jurisdiction and effectively grant a second
    appeal to review the correctness of the county court’s decision granting
    summary judgment on a PIP claim for just over $2,300.
    Even if a legal error occurred, no miscarriage of justice exists. If it has
    not done so already, in any future cases, State Farm may achieve the result
    it seeks (that is, capping reimbursement to providers at 200% of the
    applicable fee schedule) by clearly electing this option in its policies. See
    Virtual Imaging, 141 So. 3d at 158. It would be inappropriate for us “to
    announce a ‘miscarriage of justice’ simply to provide precedent where
    precedent is needed.” Stilson, 
    692 So. 2d at 983
    .
    To the extent that existing law provides a way for us to review county
    court decisions, it exists in section 34.017, Florida Statutes (2017), and
    Florida Rule of Appellate Procedure 9.160. 
    Id.
     The statute and rule permit
    the county court to certify questions that have “statewide application” and
    are of “great public importance” or “[w]ill affect the uniform administration
    -6-
    of justice.” § 34.017(1)(a) & (b), Fla. Stat (2017). As Judge Altenbernd has
    written:
    [Section 34.017] is similar to the constitutional provision
    allowing district courts to invoke the supreme court’s
    jurisdiction by certifying a question of great public
    importance. Art. V, § 3(4), Fla. Const. In the district court
    context, however, the questions are presented in published
    opinions that serve as statewide precedent. In the county
    court context, the questions are presented in unpublished
    orders encouraging the district courts to create precedent.
    Thus, the concept of a question of great public importance in
    section 34.017 is somewhat broader than in the constitution.
    County court judges should understand that this provision
    can be used to create precedent needed for the orderly
    administration of justice in their courts. We rely upon them
    to screen their cases so that the district courts may receive an
    occasional appeal rather than numerous petitions for
    certiorari.
    Stilson, 
    692 So. 2d at 983
    .
    Petition for writ of certiorari is dismissed.
    MAY and KUNTZ, JJ., concur.
    *         *          *
    Not final until disposition of timely filed motion for rehearing.
    -7-