Ivey v. Allstate Ins. Co.

• Decision Date: 07 December 2000
• Docket Number: No. SC95515.,SC95515.
• Citation: 774 So.2d 679
• Parties: Farren IVEY, Petitioner, v. ALLSTATE INSURANCE CO., Respondent.
• Court: Florida Supreme Court

774 So.2d 679

Farren IVEY, Petitioner, v.ALLSTATE INSURANCE CO., Respondent.

No. SC95515.

Supreme Court of Florida.

December 7, 2000.

Roy D. Wasson, Miami, Florida; and Ross Bennett Gampel of Klemick and Gampel, P.A., Miami, Florida, for Petitioner.

Richard A. Sherman and Rosemary B. Wilder of the Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, Florida; and Frank S. Goldstein and Christopher L. Kirwan of Green, Murphy, Wilke & Murphy, P.A., Fort Lauderdale, Florida, for Respondent.

Dean Mitchell, Ocala, Florida, for Academy of Florida Trial Lawyers, Amicus Curiae.

LEWIS, J.

We have for review Allstate Insurance Co. v. Ivey,728 So.2d 282(Fla. 3d DCA1999), on the basis of express and direct conflict with Haines City Community Development v. Heggs,658 So.2d 523(Fla.1995);Wollard v. Lloyd's & Companies of Lloyd's,439 So.2d 217(Fla.1983);andDunmore v. Interstate Fire Insurance Co.,301 So.2d 502(Fla. 1st DCA1974).We have jurisdiction.Art. V, § 3(b)(3), Fla. Const.For the reasons detailed below, we quash the Third District's decision in Ivey.

FACTS

While standing on a sidewalk, Farren Ivey was struck by an automobile operated by an Allstate-insured motorist.She suffered injuries to both her lower left leg and right shoulder.After receiving treatment for her injuries, Ivey timely applied to Allstate for personal injury protection (PIP) benefits.A health insurance claim form (HICF), reflecting a total of $710 in charges for treatment, along with the physician's report, was timely and properly forwarded to Allstate.While the HICF itself did not specify with absolute clarity whether the charges related to treatment for one or two injuries,¹ the physician's report very clearly and unambiguously stated that Ivey had received treatment for both injuries.Allstate, without conducting any investigation whatsoever and without even referring to the physician's report, decided to simply assume that the amount claimed represented treatment for only one injury.Thus, Allstate unilaterally decided to make a reduced PIP payment reflecting only eighty percent of what Allstate had itself estimated to be the proper cost of treatment for one injury.

Ivey filed the present action seeking payment of the proper PIP amount alleging that Allstate had not provided full payment within thirty days after receiving written notice of the covered loss, as required by section 627.736(4)(b), Florida Statutes(1995).Ivey sought recovery of the additional amount appearing on the HICF which Allstate had unilaterally reduced.During the deposition of the treating physician, Allstate realized that Ivey had received treatment for two injuries and, therefore, the doctor was actually entitled to the amount Allstate had unilaterally and without investigation withheld.It was only after the filing of the legal action and the completion of some discovery that Allstate finally paid the additional amount to which the doctor was actually entitled and for which Ivey had initially submitted a claim.Ivey then requested an award of attorney's fees pursuant to sections 627.736(8)and627.428(1), Florida Statutes (1995), because Allstate had conceded and paid the additional amount actually due and owing.

The county court concluded that because Allstate had paid the balance owed within thirty days of learning of its own unilateral mistake, Ivey was not entitled to attorney's fees.The county court reasoned that Allstate was not required to look beyond the HICF to clarify any questions or alleged ambiguities.The circuit court, sitting in its appellate capacity, reversed the county court's decision and in a written opinion unanimously held that Ivey was entitled to attorney's fees because a simple investigation by Allstate, within the initial thirty-day statutory period, would have revealed that the amount listed for treatment in the HICF represented treatment for injuries to multiple body areas and was correct.Allstate, dissatisfied with the appellate decision of the circuit court, sought certiorari relief in the Third District Court of Appeal.The Third District granted certiorari and reversed the circuit court's appellate decision, reasoning that because Allstate did not pay the entire claim due to an error in the doctor's bill, Ivey was not entitled to attorney's fees.SeeAllstate Insurance Co. v. Ivey,728 So.2d 282, 283(Fla. 3d DCA1999).Ivey has petitioned this Court for review.

ANALYSIS

1.Certiorari Review

In Haines City Community Development v. Heggs,658 So.2d 523, 525(Fla.1995), we clarified and narrowed the scope of common law certiorari jurisdiction by noting that "[a] decision made according to the form of the law and the rules prescribed for rendering it, although it may be erroneous in its conclusion as applied to the facts, is not an illegal or irregular act or proceeding remedial by certiorari."Instead, we held that the proper inquiry under certiorari review is limited to whether the circuit court afforded procedural due process and whether it applied the correct law.SeeHeggs,658 So.2d at 528;see alsoCombs v. State,436 So.2d 93, 95(Fla.1983)(holding that in considering common law certiorari, district courts of appeal should be primarily concerned with the seriousness of the error, not the mere existence of error, and should exercise certiorari discretion only when there has been a violation of clearly established principles of law resulting in a miscarriage of justice);Martin County v. City of Stuart,736 So.2d 1264, 1265(Fla. 4th DCA1999)(holding that when a district court of appeal reviews by certiorari the decision of a three-judge panel of the circuit court in its appellate capacity, the district court is limited to determining whether there was a lack of procedural due process or a departure from the essential requirements of law).As further explained by Judge Altenbernd:

It is well-established that certiorari should not be used as a vehicle for a second appeal in a typical case tried in county court.Kennington v. Gillman,284 So.2d 405(Fla. 1st DCA1973).When issuing this writ, district courts are guided by the bookend discussions in Combs v. State,436 So.2d 93(Fla.1983), andHaines City Community Development v. Heggs,658 So.2d 523(Fla.1995).In essence, the supreme court has cautioned the district courts to be prudent and deliberate when deciding to exercise this extraordinary power, but not so wary as to deprive litigants and the public of essential justice.

Combs and Heggs analyze the district courts' power over a "second appeal" certiorari in terms of discretion.Thus, these cases recognize that the district courts have jurisdictional power to review a circuit court decision in its appellate capacity.The controlling question is whether the discretion given to the district court under the limited standard of review provided by a petition for writ of common law certiorari is sufficient to authorize a remedy for the error committed in this case.

Existing case law establishes that the departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error.Both Combs and Heggs suggest that the district court should examine the seriousness of the error and use its discretion to correct an error "only when there has been a violation of [a] clearly established principle of law resulting in a miscarriage of justice."Heggs,658 So.2d at 528(quotingCombs v. State,436 So.2d 93, 95-96(Fla.1983)).In this case, the error occurred because the established law provided no controlling principle and the resulting monetary loss for Ms. Stilson, while unfortunate from her perspective, is not sufficient by itself to be a miscarriage of justice.

Both the county court and the circuit court were aware of the general law announced in [Government Employees Insurance Co. v. ]Novak[, 453 So.2d 1116(Fla.1984)].Unfortunately, there is no Florida case squarely discussing an object intentionally thrown at a moving car.Without such controlling precedent, we cannot conclude that either court violated a "clearly established principle of law."At worst, both courts misapplied the correct law.Their error is not a matter of disobedience to the law, but simply a failure to logically extend Novak to reach the correct result under a new set of facts.

This case highlights a significant problem within our existing judicial structure.It is difficult for the law to evolve in unreported decisions issued in circuit court appeals.What evolution occurs may take conflicting approaches within the numerous circuits.As a result, there may never be "clearly established principles of law" governing a wide array of county court issues, including PIP issues.

There is a great temptation in a case like this one to announce a "miscarriage of justice" simply to provide precedent where precedent is needed.We do not interpret Heggs as giving this court that degree of discretion in a certiorari proceeding.Such an interpretation would invite certiorari review of a large number of the appellate decisions issued by circuit courts.

Stilson v. Allstate Ins. Co.,692 So.2d 979, 982-83(Fla. 2d DCA1997).

In this case, it is clear that the Third District merely disagreed with the circuit court's interpretation of the applicable law, which, as explained in Heggs, is an improper basis for common law certiorari.See658 So.2d at 525.The announced basis for exercising its certiorari jurisdiction was a single statement quoted from Fortune Insurance Co. v. Everglades Diagnostics, Inc.,721 So.2d 384, 385(Fla. 4th DCA1998) that: "Given the pervasiveness of automobiles and PIP coverage in this state, we deem an erroneous interpretation of this law to be important enough for certiorari."Ivey,728 So.2d at 283 n. 1(emphasis supplied).The Third District's decision did not even purport to consider why the circuit court's decision constituted a...