United Automobile Insurance Co. v. Comprehensive Health Center , 2015 Fla. App. LEXIS 11689 ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed August 5, 2015.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D13-2232
Lower Tribunal Nos. 12-56 AP & 12-224 AP
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United Automobile Insurance Company,
Petitioner,
vs.
Comprehensive Health Center, a/a/o Erla Telusnor,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate
Division, Jennifer D. Bailey, Lisa S. Walsh, and Marcia B. Caballero, Judges.
Thomas Hunker, for petitioner.
Marlene S. Reiss, for respondent.
Before ROTHENBERG, LAGOA, and SCALES, JJ.
LAGOA, J.
The petitioner, United Automobile Insurance Company (“United”), petitions
for a writ of certiorari seeking to: (1) quash a decision of the appellate division of
the circuit court remanding for a trial on the issue of the reasonableness of the
claimant’s, Erla Telusnor (“Telusnor”), failure to attend an Independent Medical
Examination (“IME”); and (2) quash an order of the appellate division of the
circuit court denying its motion for appellate attorney’s fees.
Because the appellate division of the circuit court failed to apply the correct
law when it failed to apply the law of the case, we grant the petition for writ of
certiorari and quash the circuit court appellate division’s decision. We also quash
the appellate division’s order denying United’s motion for appellate attorney’s fees
under the offer of judgment statute, section 768.79, Florida Statutes (2012). If the
terms of the offer of judgment statute are ultimately satisfied, then United shall be
entitled to recover its appellate attorney’s fees.
I. FACTUAL AND PROCEDURAL HISTORY
This is the second time this case has been before this Court on petition for
writ of certiorari. See Comprehensive Health Ctr., Inc. v. United Auto. Ins. Co., 56
So. 3d 41 (Fla. 3d DCA 2010), review denied, 67 So. 3d 1049 (Fla. 2011) (circuit
court opinion at United Auto. Ins. Co. v. Comprehensive Health Ctr., Inc., 16 Fla.
L. Weekly Supp. 1143a (Fla. 11th Cir. Ct. Oct. 21, 2009)) (“Comprehensive I”).
The underlying facts concerning Comprehensive Health Center’s
(“Comprehensive”) complaint against United seeking personal injury protection
(PIP) benefits are set forth in this Court’s opinion in Comprehensive I. In
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Comprehensive I, the appellate division of the circuit court held that it was
unreasonable that Telusnor failed to attend the IMEs because her lawyer did not
tell her about the appointment. Comprehensive then filed a petition for writ of
certiorari to this Court, seeking to quash the appellate division’s decision. This
Court denied Comprehensive’s petition, concluding that the circuit court did not
depart from the essential requirements of the law when it held Telusnor’s failure to
attend IMEs to be unreasonable. 56 So. 3d at 42. Comprehensive moved for
rehearing, arguing that this Court’s opinion conflicted with Custer Medical Center
v. United Automobile Insurance Co., 62 So. 3d 1086 (Fla. 2010). This Court
denied the motion.
Comprehensive then petitioned the Supreme Court of Florida to exercise its
discretionary jurisdiction on the basis that this Court’s opinion directly conflicted
with Custer. The Supreme Court denied review. Comprehensive Health Ctr., Inc.
v. United Auto. Ins. Co., 67 So. 3d 1049 (Fla. 2011).
On subsequent remand in the trial court, Comprehensive filed a Second
Motion for Summary Judgment, arguing that pursuant to Custer, mere non-
attendance at a scheduled IME is not a defense to an action for PIP benefits, and
that United failed to allege and prove an unreasonable refusal to attend the IMEs.
United filed a Cross-Motion Motion for Summary Judgment, asserting that
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pursuant to the mandate of the appellate court, it was entitled to summary
judgment in its favor as a matter of law.
The trial court granted Comprehensive’s Second Motion for Summary
Judgment, stating that pursuant to Custer, “in order for it to constitute a defense to
payment of subsequently received PIP bills the insurance company must plead and
prove that the insured ‘unreasonably refused’ to attend the [IME].” The trial court
entered final judgment in the amount of $4,935.60 in favor of Comprehensive.
United appealed to the appellate division of the circuit court, arguing that the
trial court failed to follow the law of the case and mandates established by both the
appellate division of the circuit court and this Court in Comprehensive I. United
also filed a Motion for Attorney’s Fees Based on Rejected Offer of Judgment
pursuant to section 768.79, Florida Statutes.
The appellate division reversed the summary judgment entered in favor of
Comprehensive, but remanded for a trial on whether Telusnor unreasonably failed
to attend the IMEs. We note that in Comprehensive I, the appellate division had
already answered that question, finding Telusnor in fact acted unreasonably. In
reaching its conclusion on this second round of appeals, the appellate division,
without discussing its own prior holding, stated that, because this Court denied
certiorari in Comprehensive I, our opinion was merely “dicta” which did not
constitute the law of the case. Citing to Custer, the appellate division also noted
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that “United was required to plead and prove unreasonable refusal if it intends to
prevail on this defense.” United Auto. Ins. Co. v. Comprehensive Health Ctr., 20
Fla. L. Weekly Supp. 947a (Fla. 11th Cir. Ct. Aug. 5, 2013). Asserting that the
“record remains silent after two appeals as to the reasonableness or
unreasonableness of Telusnor’s failure to attend the IME,” the appellate division
held that summary judgment was inappropriate, and remanded for a trial. Id.The appellate division also entered an order denying United’s motion for
appellate attorney’s fees and costs. United then filed the present petition for writ
of certiorari.
II. STANDARD OF REVIEW
“[W]hen a district court considers a petition for second-tier certiorari review,
the ‘inquiry is limited to whether the circuit court afforded procedural due process
and whether the circuit court applied the correct law,’ or, as otherwise stated,
departed from the essential requirements of law.” Custer Med. Ctr. v. United
Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010) (quoting Haines City Cmty. Dev.
v. Heggs, 658 So. 2d 523, 530 (Fla. 1995)); accord Ivey v. Allstate Ins. Co., 774
So. 2d 679, 682 (Fla. 2000) (“[T]he proper inquiry under certiorari review is
limited to whether the circuit court afforded procedural due process and whether it
applied the correct law.”).
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A second-tier certiorari proceeding “cannot be used to grant a second appeal
to correct the existence of mere legal error,” and “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, 62 So.
3d at 1092-93; accord Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla.
2003); Ivey, 774 So. 2d at 682, 683 (stating that a court’s misapplication of the
correct law or “erroneous interpretation of [a] law” is not a departure from the
essential requirements of the law).
A departure from the essential requirements of law is not
mere legal error, but instead, involves a “gross
miscarriage of justice.” Heggs, 658 So. 2d at 527. Due to
its discretionary nature, a district court of appeal may
refuse to grant certiorari relief even if there is legal error
which could be argued to be a departure from the
essential requirements of law.
Sutton v. State, 975 So. 2d 1073, 1081 (Fla. 2008).
Relevant here, it has been established that when a lower court fails to follow
the law of the case, certiorari is warranted “because such failure exceeds the court's
role in the appellate process.” Dougherty v. City of Miami, 89 So. 3d 963, 966
(Fla. 3d DCA 2012); accord Dougherty v. City of Miami, 23 So. 3d 156, 158 (Fla.
3d DCA 2009) (Wells, J., specially concurring) (granting petition for certiorari and
quashing circuit court appellate division’s opinion because it failed to apply the
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law of the case as established by its own prior decision, which became binding
upon this Court’s denial of certiorari review).
III. ANALYSIS
United asserts that certiorari is appropriate because the circuit court failed to
follow the law of the case as established in Comprehensive I when it remanded
for a trial on the issue of the reasonableness of Telusnor’s excuse for her failure to
attend the IMEs. We agree with United.
A. The law of the case doctrine
The law of the case doctrine applies where successive appeals are taken in
the same case. Delta Prop. Mgmt. v. Profile Invs., Inc., 87 So. 3d 765, 770 (Fla.
2012); Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001). It
provides that “questions of law decided on appeal to a court of ultimate resort must
govern the case in the same court and the trial court, through all subsequent stages
of the proceedings.” McGregor v. Provident Trust Co. of Phila., 162 So. 323, 327
(Fla. 1935); see also Juliano, 801 So. 2d at 105 (“The doctrine of the law of the
case requires that questions of law actually decided on appeal must govern the case
in the same court and the trial court, through all subsequent stages of the
proceedings.”).
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Pursuant to the law of the case doctrine, a lower court cannot change the law
of the case as established by the highest court hearing the case, and a trial court
must “follow prior rulings of the appellate court as long as the facts on which such
decision are based continue to be the facts of the case.” Juliano, 801 So. 2d at 106;
see also Brunner Enters., Inc. v. Dep’t of Revenue, 452 So. 2d 550 (Fla. 1994).
And, although an appellate court has the power to change the law of the case
established in its prior decision where adherence to the rule would result in a
“manifest injustice,” Strazzulla v. Hendrick, 177 So. 2d 1, 4 (Fla. 1965), a question
of law decided on appeal will seldom be reconsidered or reversed, even when it
appears to have been erroneous. See McGregor, 162 So. at 728; Parker Family
Trust I v. City of Jacksonville, 804 So. 2d 493 (Fla. 1st DCA 2001).
As a result, absent extraordinary circumstances, the ruling of an appellate
court in an earlier appeal is binding on the lower court on remand, and on the
appellate court in a subsequent appeal in the same case. See Henry v. State, 649
So. 2d 1361, 1364 (Fla. 1994) (“[A]ll points of law which have been previously
adjudicated by a majority of this Court may be reconsidered only where a
subsequent hearing or trial develops material changes in the evidence, or where
exceptional circumstances exist whereby reliance upon the previous decision
would result in manifest injustice.”); see also Brunner Enters., Inc., 452 So. 2d at
552-53 (stating that the lower courts cannot change the law of the case as decided
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by the highest court hearing a case, and that the highest court hearing a case and
should only modify the law of the case when adherence to it would result in
“manifest injustice”).
United argues that certiorari is appropriate here because the trial court and
the appellate division of the circuit court failed to follow the law of the case as
established in Comprehensive I. We agree. Contrary to the appellate division’s
statement on review before us here, the record is not silent on the issue of
“reasonableness.”
During the trial proceedings giving rise to Comprehensive I, the trial court
conducted a hearing on cross motions for summary judgment as to the
reasonableness of Telusnor’s excuse for her failure to attend the IME’s, and it
concluded that summary judgment should be entered in favor of Comprehensive.
Specifically, the appellate division found that Telusnor received notice of the
IME, through her attorney, as the “IME notice was sent certified mail to her
attorney and by regular mail to her.” Comprehensive Health Ctr., 16 Fla. L.
Weekly Supp. 1143a. Moreover, the provider, Comprehensive, “admitted at the
lower court hearing that notice to the attorney constitutes notice to the client.” Id.
As such, the appellate division concluded that Telusnor’s failure to attend the IME
was “an ‘unreasonable refusal’ under the statute” as “it is not a valid excuse for
nonattendance, when the claimant is represented by counsel, and counsel received
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valid notice.” Id. The appellate division, therefore, reversed in Comprehensive I,
holding that based on the evidence presented, which was admittedly undisputed,
Telusnor’s excuse, as a matter of law, was not reasonable, and that the trial court
erred in granting summary judgment in favor of Comprehensive “when the
claimant unreasonably refused to attend the IME.” 1 Id.
On petition to this Court, we denied Comprehensive’s petition for certiorari
review, finding that “the appellate division of the circuit court did not depart from
the essential requirements of the law when it held it to be unreasonable that
claimant Erla Telusnor failed to attend Independent Medical Exam appointments
because her lawyer did not tell her about the appointments.” 56 So. 3d at 42.
Contrary to the appellate division’s current statement that our finding in
Comprehensive I was dicta, the appellate division’s earlier finding about the
unreasonableness of Telusnor’s failure to attend was the central issue before this
Court and necessary to our elaborated decision in Comprehensive I denying
certiorari, and it thus constitutes the law of the case. See Topps v. State, 865 So.
2d 1253, 1258 (Fla. 2004) (“[U]nelaborated orders denying relief in connection
with all extraordinary writ petitions issued by Florida courts shall not be deemed to
be decisions on the merits . . . unless there is a citation to authority or other
statement that clearly shows that the issue was considered by the court on the
1 The Appellate division’s decision in Comprehensive I reversed and remanded
the cause to the trial court for further proceedings consistent with the opinion.
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merits and relief was denied.”); State, Dep’t of Highway Safety & Motor Vehicles
v. Trauth, 971 So. 2d 906 (Fla. 3d DCA 2007) (stating that the law of the case
doctrine only applies when certiorari is denied on the merits); cf. Turcotte v. City
of Coconut Creek, 88 So. 3d 296 (Fla. 4th DCA 2012) (finding that res judicata
barred appeal where prior order of court denying petition for writ of certiorari
clearly showed that same issue raised on appeal was considered by the court on the
merits and denied).
Specifically, this Court considered and addressed the reasonableness of
Telusnor’s excuse for her failure to appear in denying Comprehensive’s petition
for certiorari. In reaching its decision to deny certiorari, this Court noted that
“[b]oth sides agree that Telusnor did not appear for the medical exam
appointments because she said that she never received notice of them, and/or her
attorney did not tell her about them.” 56 So. 3d at 43. Based on that, this Court
“conclude[d] that Telusnor's reason for her non-appearance at the medical exam
appointments constituted an unreasonable basis to excuse her non-appearance.” Id.Moreover, in considering “the reasonableness of Telusnor’s excuse for her failure
to appear,” this Court addressed why reasonableness was at issue. Id. This Court
noted that section 627.736(7), Florida Statutes (2009),
states that if a person unreasonably refuses to submit to a
medical exam, the PIP carrier is no longer liable for
subsequent personal injury protection benefits. By using
the term “unreasonably refuses to submit” in subsection
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627.736(7)(b), it is logical to deduce there are scenarios
where the insured “reasonably refuses to submit” to the
examination. U.S. Sec. Ins. Co. v. Cimino, 754 So. 2d
697 (Fla. 2000). Our recent decision in United
Automobile Insurance Co. v. Gaitan, 41 So. 3d 268 (Fla.
3d DCA 2010), presents one of those scenarios.
In Gaitan, unlike here, there was a reasonable basis
that excused non-attendance at a medical exam. This
Court held in Gaitan that the circuit appellate court did
not misapply the law when it remanded the issue of
reasonableness of claimant's refusal to attend the medical
exam on the basis that the claimant had never been
treated by a chiropractor. Id. at 268. Telusnor's basis for
her non-attendance is entirely different.
Id. Indeed, this Court stated that “notice to the attorney constitutes notice to the
client,” id. at 43, and “[w]hen a claimant is represented by counsel and counsel
received valid notice via certified mail, it is not a reasonable excuse for non-
attendance.” Id. at 44.
Given this, the trial court on remand had no discretion to deny United’s
Cross-Motion for Summary Judgment which was based on the unreasonableness of
Telusnor’s failure to attend the IMEs.2 The appellate division was similarly bound
by this Court’s opinion in Comprehensive I, as well as by its own3 prior
2 See Torres v. Jones, 652 So. 2d 893, 894 (Fla. 3d DCA 1995) (“[I]t was error for
the trial court to modify the final judgment on remand, and to change the law of the
case as determined by the highest court hearing the case.”); Wilcox v. Hotelerama
Assocs., Ltd., 619 So. 2d 444, 446 (Fla. 3d DCA 1993) (“A trial court does not
have discretionary power to alter or modify the mandate of an appellate court in
any way, shape, or form.”); Hessen v. Metro. Dade Cnty., 569 So. 2d 887 (Fla. 3d
DCA 1990) (granting motion to enforce mandate where trial court’s class
certification on remand altered this Court’s determination regarding the class
representative in first appeal).
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determination on the issue of “reasonableness.”4 Accordingly, we find that the
appellate division’s decision before us failed to apply the correct law when it failed
to follow the law of the case as established in Comprehensive I. See Juliano, 801
So. 2d at 105 (“The doctrine of the law of the case requires that questions of law
actually decided on appeal must govern the case in the same court . . . through all
subsequent stages of the proceedings.”); see also Dougherty, 23 So. 3d at 158
(holding that circuit court failed to apply the correct law when it failed to enforce
its prior decision after this Court issued a denial of certiorari review in
Morningside Civic Ass’n v. Dougherty, 944 So. 2d 370 (Fla. 3d DCA 2006)
(table)).
Comprehensive, however, asserts that this Court should deny certiorari
because the circuit court properly recognized that the intervening Supreme Court
of Florida case of Custer “requires United to prove its affirmative defense [of
unreasonable refusal] in this case.” While an intervening decision by a higher
court is indeed one of the rare situations in which the highest court hearing a case
will consider a request to modify the law of the case in order to prevent a “manifest
3 It is irrelevant – despite the suggestion of the appellate division panel in
Comprehensive II – that different appellate division panels of the circuit court
heard and ruled on Comprehensive I and Comprehensive II.
4 If the appellate division had wished to change the law of the case established by
its prior decision – and if this Court had not issued an elaborated opinion in
Comprehensive I, the appellate division would still have had to follow the high
standards set by McGregor and Strazzulla as discussed supra.
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injustice,” Comprehensive is incorrect that Custer constituted an intervening
decision that required the appellate division to disregard the law of the case. See
Brunner, 452 So. 2d at 553; accord Strazzulla, 177 So. 2d at 4 (“Another clear
example of a case in which an exception to the general rule should be made results
from an intervening decision by a higher court contrary to the decision reached on
the former appeal, the correction of the error making unnecessary an appeal to the
higher court.”).
In Custer, United moved for a directed verdict without having presented any
evidence on its affirmative defense that the claimant’s failure to attend a medical
examination was unreasonable as a matter of law under section 627.736(7).
Custer, 62 So. 3d at 1090. The trial court granted United’s motion, partly on the
basis that the claimant’s failure to appear for examination without excuse or
objection to the notices constituted an unreasonable refusal. Id. The appellate
division of the circuit court reversed, holding that “in the absence of evidence
supporting the affirmative defense, the directed verdict is premature.” Id. at 1091.
This Court subsequently granted United’s petition for certiorari, quashed the circuit
court’s reversal, and remanded with instructions to reinstate the directed verdict in
favor of United.
In reaching its conclusion, the Supreme Court held that United “was
required to present evidence to the fact-finder that [the claimant] unreasonably
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failed to attend a medical examination without explanation after having received
proper notice.” Id. at 1097 (emphasis in original). The Supreme Court noted that
the trier of fact was not presented with affirmative evidence that the claimant
actually received notice of the scheduled medical examinations or that any failure
was unreasonable. Id. The Supreme Court also stated that “United had the burden
of demonstrating the absence of any material issue of fact,” id. at 1098, and that
the “directed verdict was premature because United had not demonstrated the
absence of any material issue of fact for the jury” regarding the reasonableness of
the failure to attend. Id. (emphasis added).
It is undisputed that United raised the issue of unreasonableness in this case;
Custer requires that United present affirmative evidence that Telusnor
unreasonably failed to attend the IMEs without explanation after having received
notice and not rely on the mere fact of non-attendance. At the initial proceedings
before the trial court that gave rise to Comprehensive I, it was undisputed that
Telusnor gave no excuse or explanation for her non-attendance. United then
presented undisputed evidence that notices of the IMEs were sent to both Telusnor
and her attorney, that service was made by certified mail on her attorney, and that
notice on the attorney constituted proper notice on Telusnor. Perhaps presciently
anticipating Custer’s future ruling, the appellate division in Comprehensive I
found that proper notice had in fact been received and that, based on the
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undisputed facts in the record, Telusnor had unreasonably failed as a matter of law
to attend the IMEs. This finding is consistent with Custer’s subsequent holding
that the insurer bear the burden of presenting actual evidence to show unreasonable
non-attendance after receipt of proper notice. Put another way, United satisfied its
evidentiary burden on its affirmative defense, whether analyzed pre- or post-
Custer.
Unlike Custer, in which this Court erroneously affirmed the grant of a
directed verdict in favor of a defendant where there was a complete absence of
evidence in support of the defendant’s affirmative defense, in Comprehensive I,
there was not a complete absence of evidence, but rather, a determination by the
appellate division (on undisputed facts) that United’s evidentiary presentation
demonstrated the absence of any material issue of fact concerning the
“unreasonable refusal” issue. Additionally, this Court in Comprehensive I
concluded that this was not a departure from the essential requirements of the law.
For these reasons, Custer does not modify the law of the case as established in
Comprehensive I.
Finally, United also seeks a writ of certiorari to quash a separate order of the
appellate division denying its motion for appellate attorney’s fees. In its appeal to
the circuit court below, United filed a Motion for Attorney’s Fees Based on a
Rejected Offer of Judgment. United stated that it served Comprehensive with a
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proposal for settlement which was not accepted within thirty days, and that if it
prevailed on appeal it was entitled to an award of appellate attorney’s fees pursuant
to the offer of judgment statute, section 768.79. The circuit court sitting in its
appellate capacity reversed the final judgment entered in favor of Comprehensive,
and in a separate order denied United’s motion for appellate attorney’s fees. In
denying United’s motion for appellate attorney’s fees, the circuit court failed to
apply the correct law resulting in a miscarriage of justice.
It is well settled that “[t]he plain and mandatory terms of the proposal for
settlement statute encompass all costs and attorney’s fees incurred leading up to a
final judgment,” including fees incurred on appeal. State Farm Fire & Cas. Co. v.
Rembrandt Mobile Diagnostics, Inc., 93 So. 3d 1161, 1162 (Fla. 4th DCA 2012);
accord Motter Roofing, Inc. v. Leibowitz, 833 So. 2d 788, 789 (Fla. 3d DCA 2002)
(“This Court, along with all district courts in Florida, has ruled that Section 768.79
also applies to fees incurred on appeal. . . . Thus, the circuit court, sitting in its
appellate capacity, departed from the essential requirements of law by denying the
petitioner's request for appellate attorney's fees.”) (internal citations omitted).
This Court has previously held that “section 768.79 creates an independent,
substantive, and statutory basis for the award of attorney’s fees when the
requirements of the statute have been met.” United Auto. Ins. Co. v. Virga, 116
So. 3d 1288, 1289-90 (Fla. 3d DCA 2013) (quoting DuPont Builders, Inc. v.
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Baker, 987 So. 2d 146, 147 (Fla. 2d DCA 2008)). Moreover, it has been
established that the failure of the circuit court to grant an award of appellate fees,
conditioned upon meeting the terms of the offer of judgment statute, in a scenario
similar to the instant one is a departure from the essential requirements of the law.
See Rembrandt, 93 So. 3d at 1161.
Accordingly, the circuit court sitting in its appellate capacity should have
conditionally granted United’s motion for appellate attorney’s fees incurred in
successfully obtaining a reversal of the final judgment entered in favor of
Comprehensive. The failure to do so was a departure from the essential
requirements of the law. We therefore grant the petition for writ of certiorari, and
quash the circuit court’s order denying United’s motion for appellate attorney’s
fees under the offer of judgment statute. If the terms of the offer of judgment
statute are ultimately satisfied, United will be entitled to recover its appellate
attorney’s fees.
IV. CONCLUSION
Because the appellate division’s failure to apply the correct law, as
established in Comprehensive I, constitutes a departure from the essential
requirements of the law, see Dougherty, 89 So. 3d at 966, we grant United’s
petition for certiorari and quash the circuit court’s appellate decision remanding for
a trial on the issue of reasonableness.
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We also quash the circuit court’s order denying United’s motion for
appellate attorney’s fees under the offer of judgment statute. If the terms of the
offer of judgment statute are ultimately satisfied, United will be entitled to recover
its appellate attorney’s fees.
Petition granted; decision quashed and order quashed.
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