Progressive Express Insurance Co. v. Emergency Physicians of Central Florida , 2016 Fla. App. LEXIS 5429 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
PROGRESSIVE EXPRESS INSURANCE
COMPANY,
Petitioner,
v. Case No. 5D15-3719
EMERGENCY PHYSICIANS OF
CENTRAL FLORIDA, ETC.,
Respondent.
________________________________/
Opinion filed April 8, 2016
Petition for Certiorari Review of Order
from the Circuit Court for Orange County,
Alicia Latimore, Judge.
Douglas H. Stein, of Seipp, Flick & Hosley,
LLP, Miami, for Petitioner.
Dean A. Mitchell, Ocala, for Respondent.
PER CURIAM.
Progressive Express Insurance Company (“Progressive”) seeks certiorari review
of an order rendered by the circuit court, sitting in its appellate capacity. We are
confronted with the same issue that has been resolved in Mercury Insurance Company
of Florida v. Emergency Physicians of Central, 182 So. 3d 661 (Fla. 5th DCA 2015). In
Mercury, this court held that all claims, including Emergency Physicians of Central
Florida’s priority claim, are properly applied to a personal injury protection deductible in
the order that they are received. Id. at 662-63. See also Progressive Am. Ins. Co. v.
Emergency Physicians of Cent. Fla., 41 Fla. L. Weekly D714 (Fla. 5th DCA Mar. 18,
2016); Progressive Am. Ins. Co. v. Emergency Physicians of Cent. Fla., 41 Fla. L.
Weekly D564 (Fla. 5th DCA Mar. 4, 2016); USAA Gen. Indem. Co. v. Emergency
Physicians Cent., 41 Fla. L. Weekly D435 (Fla. 5th DCA Feb. 19, 2016); Progressive
Select Ins. Co. v. Fla. Emergency Physicians, 183 So. 3d 489, 489 (Fla. 5th DCA 2016);
Metro. Cas. Ins. Co. v. Emergency Physicians of Cent. Fla., LLP, 178 So. 3d 927, 928
(Fla. 5th DCA 2015).
Pursuant to Mercury, the circuit court in the instant appeal erred in holding that
the benefits to be paid from the $5000 reserve imposed by section 627.736(4)(c),
Florida Statutes (2011), are not subject to an otherwise applicable deductible. Such an
interpretation runs afoul of the plain language of section 627.739(2), Florida Statutes
(2011), which sets out that “[t]he deductible amount must be applied to 100 percent of
the expenses and losses described in s. 627.736.” Accordingly, Emergency Physicians
of Central Florida is not entitled to payment from Progressive, as Progressive properly
applied its claim to the deductible. We grant Progressive’s petition for writ of certiorari
and quash the circuit court’s order.
CERTIORARI GRANTED; ORDER QUASHED.
SAWAYA, PALMER and TORPY, JJ., concur.
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