STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. CC CHIROPRACTIC, LLC, a/a/o ISLANDE NAPOLEON

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

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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.

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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.

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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.

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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

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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.

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