United Auto. Ins. Co. v. Comprehensive Health Ctr.

• Decision Date: 05 August 2015
• Docket Number: No. 3D13–2232.,3D13–2232.
• Citation: 173 So.3d 1061
• Parties: UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. COMPREHENSIVE HEALTH CENTER, a/a/o Erla Telusnor, Respondent.
• Court: Florida District Court of Appeals

173 So.3d 1061

UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner

v.COMPREHENSIVE HEALTH CENTER, a/a/o Erla Telusnor, Respondent.

No. 3D13–2232.

District Court of Appeal of Florida, Third District.

Aug. 5, 2015.

Thomas Hunker, Miami, for petitioner.

Marlene S. Reiss, Miami, for respondent.

Before ROTHENBERG, LAGOA, and SCALES, JJ.

Opinion

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 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 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 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.”).

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 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., 119 Fla. 718, 162 So. 323, 327 (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.”).

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.1984). 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 328 ; 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...