Allstate Fire and Casualty Ins. Co. v. Hallandale Open Mri, LLC

Third District Court of Appeal
State of Florida

Opinion filed April 19, 2017.
THIS OPINION IS NOT FINAL UNTIL DISPOSITION OF ANY MOTION FOR
REHEARING AND/OR REHEARING EN BANC. ANY PREVIOUSLY-FILED
MOTION FOR REHEARING EN BANC IS DEEMED MOOT.

________________

No. 3D16-38
Lower Tribunal No. 13-461
________________

Allstate Fire and Casualty Insurance Company,
Petitioner,

vs.

Hallandale Open MRI, LLC, a/a/o Alexia Blake,
Respondent.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate
Division, Jacqueline Hogan Scola, Jorge Cueto, and Ariana Fajardo Orshan,
Judges.

Shutts & Bowen, and Suzanne Youmans Labrit and Douglas G. Brehm
(Tampa); Cozen O’Connor, and Peter J. Valeta (Chicago, IL), for petitioner.

Marlene S. Reiss, for respondent.
Before SALTER, LOGUE and SCALES, JJ.

SALTER, J.

On Motion for Rehearing

On consideration of the petitioner’s motion for rehearing, the response, and

the decision of the Supreme Court of Florida in Allstate Insurance Co. v.

Orthopedic Specialists, No. SC15-2298, 2017 WL 372092 (Fla. Jan. 26, 2017)

(“Orthopedic Specialists II”), we withdraw our opinion in this case issued

September 28, 2016,1 and replace it with the opinion which follows.

In the September 2016 opinion, we dismissed a petition for second-tier

certiorari filed by Allstate Fire and Casualty Insurance Company (“Allstate”).

Allstate’s petition asked the Court to quash a 2015 circuit court appellate division

opinion affirming a county court judgment for a medical provider in a personal

injury protection (PIP) auto insurance case. The appellate division decided an

interpretive question regarding the sufficiency of PIP policy language following

the Legislature’s amendments to section 627.736, Florida Statutes, in 2008.

In Orthopedic Specialists II, the Supreme Court of Florida has now

determined that interpretive question. The Court held that a PIP policy term

providing that reimbursements “shall be subject to” the Medicare fee schedules in

1Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI, LLC, 41 Fla. L. Weekly
D2208 (Fla. 3d DCA Sept. 28, 2016).

2
section 627.736(5)(a)2., Florida Statutes (2009), is unambiguous, resolving a

conflict in decisions previously issued by the First and Fourth District Courts of

Appeal: Allstate Fire & Cas. Ins. Co. v. Stand-Up MRI of Tallahassee, P.A., 188

So. 3d 1 (Fla. 1st DCA 2015) (finding the policy provision unambiguous and

mandatory), and Orthopedic Specialists v. Allstate Ins. Co., 177 So. 3d 19 (Fla. 4th

DCA 2015) (“Orthopedic Specialists I”) (finding the policy provision ambiguous).

At the time the circuit court appellate division ruled in the present case, this Court

had not addressed the underlying issue.2 The circuit court appellate division

concluded that the PIP policy language was ambiguous, following the reasoning

and opinion of the Fourth District in Orthopedic Specialists I.

Under the standard for second-tier certiorari review established in Custer

Medical Center v. United Automobile Insurance Co., 62 So. 3d 1086 (Fla. 2010),

and Allstate Insurance Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003), we initially

concluded that we did not have jurisdiction in this case. With the conflict issue

pending before the Supreme Court of Florida, we discerned no violation of a

2 While the petition in this case was pending, however, a panel of this Court heard
a direct appeal regarding the same issue certified to us by the county court based
on conflicting circuit court decisions. Fla. Wellness & Rehab. v. Allstate Fire &
Cas. Ins. Co., 201 So. 3d 169 (Fla. 3d DCA 2016) (“Fla. Wellness”). This Court
concluded that the “shall be subject to” language in the PIP policy was
unambiguous and mandatory, certifying conflict with the Fourth District opinion in
Orthopedic Specialists I.

3
“clearly established principle of law resulting in a miscarriage of justice.” Custer

Med. Ctr., 62 So. 3d at 1092. The original dissenting opinion in this case,

however, argued against dismissal based on this Court’s decision in Florida

Wellness, which by then had concluded that the “shall be subject to” term in the

PIP policy was unambiguous:

It is clearly a miscarriage of justice to prevent further review in a
manner that causes the identical cases of similarly situated persons in
the same court to be decided differently based on conflicting legal
interpretations. And this clear miscarriage of justice resulting from the
failure to allow review reflects a departure from the most essential
legal requirement—equality before the law. No other legal remedy
exists to stop this miscarriage of justice here except a writ of
certiorari.

Allstate Fire and Cas. Ins. Co. v. Hallandale Open MRI, LLC, 41 Fla. L. Weekly

D2208, D2210 (Fla. 3d DCA Sept. 28, 2016) (Logue, J., dissenting). The majority

concluded that the Supreme Court of Florida would itself ultimately resolve the

conflict in decisions, such that we could not yet hold in this case that the circuit

court appellate division had violated a clearly established principle of law resulting

in a miscarriage of justice. The pendency of the conflict issue in the Supreme

Court distinguished the present case, in the view of the majority, from our own

precedent relied upon by Allstate. United Auto Ins. Co. v. Garrido, 22 So. 3d 120

(Fla. 3d DCA 2009) (second-tier certiorari review appropriate to resolve an

internal conflict of decisions in the circuit court appellate division).

4
 But the Supreme Court of Florida has now resolved the conflict issue in an

opinion which turns on a de novo statutory and contractual interpretation, quashing

Orthopedic Specialists I and approving Stand-Up MRI. Orthopedic Specialists II,

2017 WL 372092 at *1. Our colleague’s earlier dissent in the present case and our

own concern regarding the jurisdictional limits of second-tier certiorari as detailed

by the Supreme Court of Florida in Custer Medical Center can now be reconciled.

The statutory and policy language in question have been definitively analyzed and

interpreted for the entire state by its highest court.

Applying the Supreme Court’s opinion in Orthopedic Specialists II to the

petition in the present case, we conclude that the jurisdictional requirements of

Custer Medical Center are satisfied, such that the petition should be granted. From

the standpoint of the circuit court appellate division panel, this may seem

unwarranted, essentially quashing the panel’s opinion based on a subsequently-

decided appellate decision that was unavailable to the panel when called upon to

rule.

When the appellate division reached its decision in 2015, this Court had not

decided the issue and the appellate division followed one of the two conflicting

district court opinions. But with that conflict now eliminated by our Supreme

Court and a definitive interpretation available to (and binding upon) all Florida

5
courts, we conclude that we should exercise our jurisdiction in conformance with

the Supreme Court’s decision in Orthopedic Specialists II.

The concurring and dissenting opinions on rehearing which follow address

the inconsistencies within the case law affecting our consideration of petitions for

second-tier certiorari. On the one hand, our Supreme Court in Custer Medical

Center has admonished the district courts to narrowly restrict the application of

our jurisdiction regarding second-tier certiorari. But on the other hand, a decision

by our Supreme Court on a substantive question of Florida law—one which, as

here, finally resolves conflicting opinions on that question at the county, circuit,

and district court levels throughout the state—deserves immediate application as to

otherwise-final opinions that were continuously challenged at all levels by the

petitioner.

The dissent’s reliance on Petrysian v. Metropolitan General Insurance Co.,

672 So. 2d 562 (Fla. 5th DCA 1996), and Theisen v. Old Republic Insurance Co.,

468 So. 2d 434 (Fla. 5th DCA 1985), is misplaced. Those decisions addressed a

different question altogether: whether a litigant may obtain post-judgment relief

from a final judgment under Florida Rule of Civil Procedure 1.540 “on the ground

that a subsequent appellate decision in an unrelated case changed the rule of law

upon which the final judgment was based.” Theisen, 468 So. 2d at 435.

6
 In the present case, a completely different scenario is presented. The county

court case became a “test case,” regarding the conflict question. The amended

final judgment for the medical provider/plaintiff was $407.26, the difference

between the amount payable under the statutory formula of section 627.736(5)(a),

Florida Statutes (2012), and the “reasonable amount” applicable if the statutory

formula was inapplicable. The amended final judgment and county court record

include joint stipulations of fact, and they do not reflect any attempt to collect the

judgment, liquidate the amount of trial and appellate attorney’s fees, or stay the

final judgment, during the pendency of the appeal in the circuit court and the

petition proceedings here. The further challenges to the small, county court

judgment obviously were not based on the sum in controversy in that case, but

rather on the thousands of PIP cases affected by the interpretive question issue each

year.3

The parties thus recognized (whether or not they used the term) that this was

a “pipeline”4 case that would be controlled by the ultimate outcome here or, if

3 For those concerned that an insurer will protract review proceedings through
petitions for second-tier certiorari, the fee-shifting consequences of a denial or
dismissal of the insurer’s petition (section 627.428, Florida Statutes (2016)),
should provide significant consolation.
4 Judge Logue emphasized the appropriateness of such “pipeline” treatment in his
original dissent in this case, 41 Fla. L. Weekly at D2210, distinguishing second-
tier certiorari consideration from a “second appeal.” The pipeline concept is

7
applicable, in the Supreme Court of Florida. Although they did not await the

resolution of the conflict issue in a pending “appeal,” it is appropriate to

characterize the issue during the pendency of this certiorari case as “pending

further review.” The interests of medical providers and the interests of PIP

insurers alike were served when clarity was provided by the Supreme Court of

Florida regarding the issue.

Petition granted.

LOGUE, J., concurs.

intended to preserve a party’s (usually a criminal defendant’s) right to obtain
retrospective application of a pending or hoped-for change in decisional law. See
Mitchell v. Moore, 786 So. 2d 521, 530-31 and 530 n.8 (Fla. 2001).

8
Allstate Fire & Casualty Insurance Company vs. Hallandale Open MRI, LLC
Case No. 3D16-38

LOGUE, J., concurring.

I fully concur that a writ of certiorari should issue quashing the decision of

the circuit court in its appellate capacity for the reasons stated in the majority

opinion. But I write to explain my belief that there is an additional ground to issue

the writ of certiorari in this case. The circuit court appellate decision under review

expressly and directly conflicts with prior appellate decisions of the same circuit

court.5 I believe a district court of appeal has the discretion to issue a writ of

certiorari on second-tier review to resolve such an express and direct conflict

between circuit court appellate decisions within its district.

My position can be summarized as follows: (1) a defect in our court system

currently prevents the establishment of clearly established principles of law

governing a wide array of county court issues; (2) Florida courts historically issued

writs of certiorari to review conflicts among lower appellate decisions; (3) issuing

a writ of certiorari to resolve a conflict among circuit court decisions is not a

second appeal because the review focuses on clarifying the law and not the

5Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI LLC, a/a/o Blake, 23 Fla.
L. Weekly Supp. 683, 684 (Fla. 11th Cir. Ct. Dec. 7, 2015) (listing conflicting
cases and noting “[w]e respectfully disagree with our colleagues”).

9
outcome for the litigants; and (4) the current standard for second-tier certiorari

permits review to resolve conflicts in lower appellate decisions.

(1) A defect in our court system prevents the establishment of clearly
established principles of law governing a wide array of county court
issues.

A properly functioning system of appellate courts will necessarily produce

conflicting decisions. And a properly functioning system of appellate courts will

necessarily have a method to resolve those conflicts. For example, the Florida

Supreme Court resolves conflicts that arise among the district courts of appeal. Art.

V, § 3(b)(3), Fla. Const. Of course, the district courts are not the only appellate

courts in Florida. The circuit courts serve as appellate courts when reviewing

orders of the county courts and local governments. Art. V, § 5(b), Fla. Const.; §

26.012(1), Fla. Stat. (2016). Just as the Florida Supreme Court resolves conflicts

among the district courts of appeal, the district courts should similarly resolve

conflicts among the circuit courts acting in their appellate capacity. But this is not

happening.

It is a well-known, but little-discussed defect in our court system that

litigants in the county courts often have their cases decided based upon conflicting

circuit court appellate decisions. As occurred in the case below, litigants in the

exact same circumstances filing in the exact same county court receive different

10
outcomes based on conflicting case law. The instant case is only a recent example.

Twenty years ago, this defect was identified by the Second District in an opinion

written by Judge Chris Altenbernd. As a result of this “significant problem within

our existing judicial structure[,]” Judge Altenbernd wrote, referring to the confused

and conflicting precedents governing county courts, “there may never be ‘clearly

established principles of law’ governing a wide array of county court issues,

including PIP issues.” Stilson v. Allstate Ins. Co., 692 So. 2d 979, 982 (Fla. 2d

DCA 1997). The Supreme Court of Florida agreed and adopted Judge Altenbernd’s

language in full in Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683 (Fla. 2000)

(quoting Stilson, 692 So. 2d at 982).

The idea that “there may never be ‘clearly established principles of law’

governing a wide array of county court issues” contradicts an essential limitation to

judicial discretion—that “[d]ifferent results reached from substantially the same

facts comport with neither logic nor reasonableness.” Canakaris v. Canakaris, 382

So. 2d 1197, 1203 (Fla. 1980). Accepting this idea would constitute a fundamental

breakdown in the hierarchal system of our appellate courts, which is designed

precisely to prevent different results reached from substantially the same facts. Id.

(2) Florida Courts historically issued writs of certiorari to review
conflicts in lower appellate decisions.

11
 Not only does the United States Supreme Court routinely issue writs of

certiorari to review conflict, but the Florida Supreme Court also historically issued

writs of certiorari to review conflict.

In Lake v. Lake, 103 So. 2d 639, 643 (Fla. 1958), for example, the Florida

Supreme Court expressly acknowledged that it could issue a writ of certiorari

under Article V, §4(2), Florida Constitution (1957) to resolve a conflict on the face

of a district court opinion:

If in a particular case an opinion is rendered by a district court of
appeal that prima facie conflicts with a decision of another district
court of appeal or of the Supreme Court on the same point of law, the
writ of certiorari may issue and, after study, may be discharged, or the
decision of the district court of appeal may be quashed or modified to
the end that any conflict may be reconciled.

Lake, 103 So. 2d at 643 (emphasis added). See also Foley v. Weaver Drugs,

Inc., 177 So. 2d 221, 225 (Fla. 1965) (holding that the Florida Supreme

Court “may review by conflict certiorari a per curiam judgment of

affirmance without opinion where an examination of the record proper

discloses that the legal effect of such per curiam affirmance is to create

conflict with a decision of this court or another district court of appeal”

(emphasis added)); Gibson v. Maloney, 231 So. 2d 823, 824 (Fla. 1970) (“It

is conflict of Decisions, not conflict of Opinions or reasons that supplies

jurisdiction for review by certiorari.” (Emphasis added)). While these

12
decisions were abrogated by the subsequent amendments to the constitution

which removed all certiorari jurisdiction from the Florida Supreme Court,6

they illustrate how conflict certiorari has been part of our constitutional

history.

Some may argue, however, that these cases involved “constitutional

certiorari” under constitutional provisions that expressly authorized the Supreme

Court to review conflict by certiorari. Art. V, §4(2), Fla. Const. (1957) (“The

Supreme Court may review by certiorari any decision of a district court of appeal .

. . that is in direct conflict with a decision of another district court of appeal or of

the Supreme Court on the same point of law.”). This “constitutional certiorari,” it

may be argued, provides an expanded form of certiorari including a broader type of

review than that provided by the “common law certiorari” that the current

constitution provides to district courts of appeal.

This argument conflicts with other case law. While there may be

differences between “constitutional certiorari” and “common law certiorari,” the

language in the constitution as of 1957 providing for the issuance of certiorari

based on conflict is a type of certiorari that is more restrictive – not more

6The holdings of these cases were abrogated by the 1980 Amendments to Article
V, § 3(b)(3), Florida Constitution. See, e.g., Jenkins v. State, 385 So. 2d 1356,
1359 (Fla. 1980).

13
expansive – than common law certiorari. The drafters granted the Florida Supreme

Court the discretion to issue the writ – not in general – but only in certain limited

circumstances including conflict. This is the only explanation that reconciles the

Lake line of cases with the Supreme Court’s contemporaneous decision in De

Groot v. Sheffield, 95 So. 2d 912, 915 (Fla. 1957). In De Groot, the Supreme

Court concluded that a party to an administrative proceeding was entitled to an

appeal as a matter of right because the proceeding was quasi-judicial in nature. No

statute provided the means for appeal, however, so the Florida Supreme Court held

that the proper vehicle to provide the missing plenary appeal was the circuit court’s

discretion to issue a common law writ of certiorari. Id. at 915-16 (“The writ is

available to obtain review in such situations when no other method of appeal is

available.”).

In subsequent decisions, the Supreme Court made clear that this use of

common law certiorari was not subject to the restrictive standard often associated

with common law certiorari in other contexts: “[a]lthough termed ‘certiorari’

review, review at this level is not discretionary but rather is a matter of right and is

akin in many respects to a plenary appeal.” Fla. Power & Light Co. v. City of

Dania, 761 So. 2d 1089, 1092 (Fla. 2000). The Florida Supreme Court

subsequently codified the De Groot line of cases in Rule 9.100(c)(2) of the Florida

14
Rules of Appellate Procedure where it remains today. Indeed, common law

certiorari has provided a plenary appeal as of right in other circumstances as well.7

If common law certiorari can provide a plenary appeal in the appropriate

circumstances, it must necessarily be available to provide a less-than-plenary,

discretionary review to resolve conflicts, in appropriate circumstances. Thus, just

as common law certiorari could be used to provide the required but missing

plenary appeal in De Groot, it can be used to provide a less-than-plenary appeal

based on an express conflict when necessary to avoid the current situation in which

“there may never be ‘clearly established principles of law’ governing a wide array

of county court issues.”

(3) Issuing a writ of certiorari to resolve a conflict in circuit court
appellate decisions is not a second appeal because the review
focuses on clarifying the law and not the outcome for the litigants.

The main objection to granting certiorari to review a conflict is that it may

allow a “second appeal.” See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d

7 For example, certiorari as an appeal of right is available to obtain first-tier
appellate review of a circuit court appellate decision to award attorney’s fees or
disqualify counsel. See, e.g., City of Miami Beach v. Deutzman, 180 So. 3d 245,
245-46 (Fla. 3d DCA 2015) (“The order was the first ruling on the question of
attorneys’ fees. Properly viewed, our proceeding is not the second, but rather the
first tier of appellate review.”).

15
1086, 1092-93 (Fla. 2010). But as the Supreme Court explained in Lake, the grant

of certiorari to resolve a conflict is not a second appeal because the focus is no

longer on resolving the dispute between the parties but instead on resolving the

conflict in the law.

In Lake, the Supreme Court emphasized the importance of not granting a

second appeal, which is both wasteful and abusive: “[w]hen a party wins in the

trial court he must be prepared to face his opponent in the appellate court, but if he

succeeds there, he should not be compelled the second time to undergo the expense

and delay of another review.” Lake, 103 So. 2d at 642. A party, the Court

concluded, “is not entitled to two appeals.” Id. But the Court in Lake further

explained that issuing a writ of certiorari to resolve a conflict is not a second

appeal because such review “deal[s] with matters of concern beyond the interests

of the immediate litigants.” Id. When granting certiorari to resolve a conflict

between appellate decisions, “at this late day in the progress of the litigation the

standardization of decisions on the same point of law will have become primary,

the effect upon the immediate litigants consequential.” Id. at 643.

Perhaps the most-cited reason why second-tier certiorari cannot be allowed

to become a second appeal is that doing so would afford a litigant in the county

court (which is a trial court of limited jurisdiction) more appeals than a litigant in

16
the circuit court (which is a trial court of general jurisdiction).8 But issuing the writ

to resolve conflict does not give a county court litigant more appellate

opportunities than the circuit court litigant because the circuit court litigant has the

right to seek further review if the district court’s review of its case leads to an

opinion that conflicts with the decision of another district.

The issuance of a writ of certiorari by a district court to resolve conflicts in

circuit court appellate decisions is no more the granting of a second appeal than the

Supreme Court’s exercise of conflict jurisdiction to resolve conflicts among district

court decisions. Far from being a usurpation of the district court’s jurisdiction and

prerogative as a final appellate court, conflict certiorari is a proper and necessary

adjunct to it. Thus, granting a petition for writ of certiorari to resolve conflicts does

not equate to granting a second appeal.

(4) The current standard for second-tier certiorari allows review to
resolve conflicts in lower appellate decisions.

8 “The policy behind this rule is simple. . . . If, in cases originating in courts
inferior to the circuit courts, another appeal from the circuit court is afforded in the
guise of certiorari, then a litigant will have two appeals from the court of limited
jurisdiction, while a litigant would be limited to only one appeal in cases
originating in the trial court of general jurisdiction.” Haines City Cmty. Dev. v.
Heggs, 658 So. 2d 523, 526 n.4 (Fla. 1995); see, e.g., Custer, 62 So. 3d at 1093
(“A more expansive review would also afford a litigant two appeals from a court
of limited jurisdiction, while limiting a litigant to only one appeal in cases
originating in a trial court of general jurisdiction.”).

17
 Finally, I believe the current standard for second-tier certiorari includes

discretionary review to resolve express and direct conflicts among circuit court

appellate opinions. The standard for second-tier certiorari is whether the circuit

court’s decision denies procedural due process or departs from the essential

requirements of law resulting in a miscarriage of justice. Custer, 62 So. 3d at 1092.

When applying this test, the Florida Supreme Court “has repeatedly emphasized

that district courts must be allowed a large degree of discretion so that they may

judge each case individually.” Nader v. Fla. Dep’t of Highway Safety & Motor

Vehicles, 87 So. 3d 712, 726 (Fla. 2012) (quotation omitted). In fact, for this very

reason, the Supreme Court has held that it is impossible to create an exhaustive list

of circumstances under which second-tier certiorari should issue. Id.

While a court considering issuing the writ must “not usurp the authority of

the trial judge or the role of any other appellate remedy, [it must] preserve the

function of this great writ of review as a ‘backstop’ to correct grievous errors that,

for a variety of reasons, are not otherwise effectively subject to review.” Custer, 62

So. 3d at 1092 (quoting Haines City Cmty. Dev. V. Heggs, 658 So. 2d 523, 531

n.14). “Thus, the district court’s exercise of its discretionary certiorari jurisdiction

should ‘depend on the court’s assessment of the gravity of the error and the

18
adequacy of other relief.’” Custer, 62 So. 3d at 1092 (quoting Heggs, 658 So. 2d at

531 n.14).

Concerning the gravity of error, it is hard to imagine a more grievous error

than to allow identical cases in the same court to be decided differently based upon

conflicting appellate decisions. Our entire system of hierarchal appellate courts is

designed to prevent this injustice. Such a result constitutes a miscarriage of justice

reflecting a departure from the most essential requirement of law—equality before

the law. It undermines the credibility of the courts in the eyes of the general public

because such conflicting results look at best like whimsy and at worst judicial

tyranny. The dramatic and wide-reaching ramifications of the failure to allow

review to resolve conflicts and thus by omission to cause identically situated

litigants to receive conflicting outcomes is “sufficiently egregious or fundamental

to merit the extra review and safeguard provided by certiorari.” Nader, 87 So. 3d at

727 (quotation omitted).

Concerning the adequacy of relief, there is no other suitable method of

review. The county court’s authority to certify issues of great public importance

directly to the district courts of appeal is not adequate. The Second District in

Stilson and the Florida Supreme Court in Ivey both acknowledged the existence of

the county court’s authority in this regard, and they both still concluded that “there

19
may never be ‘clearly established principles of law’ governing a wide array of

county court issues, including PIP issues.” Ivey, 774 So. 2d at 683; Stilson, 692 So.

2d at 983. These statements by the Second District and the Florida Supreme Court

confirm that the county court’s ability to certify is not a solution. Unless one finds

acceptable the idea that “there may never be ‘clearly established principles of law’

governing a wide array of county court issues, including PIP issues,” the

inescapable conclusion is that county court certification is simply not an adequate

remedy for circuit court appellate conflicts.

This conclusion is borne out by experience. While the conflicting legal

precedents in the circuit court at issue in this case were ultimately resolved by this

court based on a county court certification, the conflict at issue here festered in the

circuit court for years, causing identically situated parties who filed or defended

9See, e.g., Allstate Ins. Co. v. Gables Ins. Recovery Inc., a/a/o Moran, No. 13-305
AP (Fla. 11th Cir. Ct. May 18, 2016) (policy language not sufficient) (Lederman,
Cohen, and Prescott, JJ.); Allstate Fire & Cas. Ins. Co. v. Hallandale Open MRI
LLC, a/a/o Blake, 23 Fla. L. Weekly Supp. 683 (Fla. 11th Cir. Ct. Dec. 7, 2015)
(policy language not sufficient) (Hogan-Scola, Cueto, and Orshan, JJ.); Allstate
Fire & Cas. Ins. Co. v. Hallandale Open MRI LLC, a/a/o Politesse, 21 Fla. L.
Weekly Supp. 989 (Fla. 11th Cir. Ct. June 23, 2014) (policy language sufficient)
(Korvick, Bloom, and Walsh, JJ.); Allstate Indem. Co. v. Gables Ins. Recovery,
Inc., a/a/o Jimenez, 22 Fla. L. Weekly Supp. 1146 (Fla. 11th Cir. Ct. June 8, 2015)
(policy language sufficient) (Bernstein, Hendon, and Manno Schurr, JJ.); Allstate
Prop. & Cas. Ins. Co. v. Royal Diagnostic Ctr. Inc., a/a/o Mondy, 21 Fla. L.
Weekly Supp. 627 (Fla. 11th Cir. Ct. Apr. 3, 2014) (policy language sufficient)
(Smith, Lobree, and Verde, JJ.).

20
suits in the same county court to receive diametrically different outcomes.9 And

that resolution would not have helped the litigants in this case, but for our issuance

of the writ. The history of this case and the many related cases show that the

county court’s authority to certify is not adequate to provide a timely resolution of

the conflict.

On reflection, this fact should have been obvious from the beginning.

Examination of the Florida Supreme Court’s jurisdiction to review district court

decisions suggests that the drafters never viewed a court’s jurisdiction to review

certified questions as an adequate replacement for a court’s jurisdiction to resolve

conflict. When the drafters removed the Florida Supreme Court’s authority to issue

writs of certiorari, they provided the Florida Supreme Court both the discretion to

review certified issues and, separately, the discretion to review conflicts between

the district courts. See Art. V, §§ 3(b)(3), (4), (7), (8), Fla. Const. The drafters

would not have provided both avenues for review if they believed review by

certification adequately addressed the need for review of conflicts.

The drafters clearly believed both certification and conflict jurisdiction were

needed to replace the certiorari jurisdiction that they removed from the Florida

Supreme Court. And history proved them right. In calendar year 2015, for

example, the Florida Supreme Court reviewed 33 cases certified as having great

21
public importance but 864 cases based on conflict.10 As these figures show, the

Supreme Court considers over 25 times more cases under conflict jurisdiction than

certification jurisdiction. These court statistics indicate that the discretion to review

certified questions is not an adequate replacement for the discretion to review

conflicts. Thus, it appears counterintuitive to conclude that the drafters, while

realizing that certification and conflict jurisdiction were needed to replace

certiorari jurisdiction, somehow intended to remove conflict jurisdiction when they

left district courts with certiorari review.

For this reason, I do not believe the county court’s authority to certify issues

of great public importance is adequate to address conflicts in the circuit courts. En

banc review by a circuit court is similarly inadequate.11 Therefore, when

considering “the adequacy of other relief,” I can only conclude there is no other

adequate relief for conflicts among appellate decisions of the circuit courts within a

district except issuing the writ.

10Florida Supreme Court, Supreme Court Monthly/Term/Yearly Statistics for the
Period 01/01/2015 – 12/31/2015,
http://www.floridasupremecourt.org/pub_info/documents/caseload/2015_Florida_
Supreme_Court_Caseload.pdf (last visited March 15, 2017).
11To begin with, there is no authorizing rule. More importantly, in most circuits,
such a rule would be “be impractical because of the large number of circuit judges
that would be involved.” State v. Lopez, 633 So. 2d 1150, 1151 (Fla. 5th DCA
1994). Finally, en banc review would not resolve conflicts between circuits in a
district.

22
 Thus, based on both “the gravity of the error and the adequacy of other

relief[,]” Custer, 62 So. 3d at 1092, a district court has the discretion to issue a writ

of certiorari to review a circuit court appellate decision that expressly and directly

conflicts with another circuit court in the same district.

Conclusion

The county courts and the circuit courts acting in their appellate capacity

deal with issues that touch the lives of the people of Florida in crucial ways. It is

imperative that clear precedents be available to the judges and litigants doing this

vital work. As judges, we cannot accept a system of appellate review in which

“there may never be ‘clearly established principles of law’ governing a wide array

of county court issues.” See Ivey, 774 So. 2d at 683. Like judge-made rules of

procedure, judge-made interpretations of common law writs “should never be

permitted to become so technical, fossilized, and antiquated that they obscure the

justice of the cause and lead to results that bring its administration into disrepute.”

In re Gottschalk’s Estate, 196 So. 844, 844 (Fla. 1940).

Rather than resign ourselves to an unacceptable situation, condemn litigants

to unequal treatment, and stand by while the prestige and credibility of the courts

degrades in the eyes of the public, the courts should develop this judge-made law

to serve the needs of the courts, litigants, and people as they have in the past. See,

23
e.g., De Groot, 95 So. 2d at 915. Because unresolved conflicts in the appellate

decisions of the circuit courts create miscarriages of justice and no other adequate

remedy exists, the issuance of a writ of certiorari properly serves as the backstop to

prevent this sort of grievous error.

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 Allstate Fire & Casualty Insurance Company v. Hallandale Open MRI, LLC
Case No. 3D16-38

SCALES, J., dissenting.

It is hard to disagree with the result of the majority’s opinion on rehearing in

this case. After all, by granting the petition, the majority has promoted the ideals of

fairness and consistency; that is, these parties will be treated just like parties whose

disputes arose after the Florida Supreme Court’s opinion in Allstate Insurance Co.

v. Orthopedic Specialists, No. SC15-2298 (Fla. Jan. 26, 2017).

Florida’s county courts have adjudicated numerous PIP

reimbursement disputes based on Allstate’s policy language. While each litigated

policy contained exactly the same language, sometimes Allstate won and

sometimes Allstate lost.12 From now on, Allstate will prevail in these disputes

under the Florida Supreme Court’s opinion in Orthopedic Specialists.

By granting Allstate’s petition and issuing the writ, however, the majority

has given Allstate the retroactive benefit of this Supreme Court opinion. In my

view, this marks an unprecedented exercise of this Court’s certiorari jurisdiction

and conflicts with the Florida Supreme Court’s certiorari dictates in Custer

Medical Center v. United Auto Insurance Co., 62 So. 3d 1086 (Fla. 2010).

12Allstate lost this particular case in county court on April 8, 2014. Allstate lost its
appeal to circuit court on December 7, 2015.

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 Florida’s retroactivity jurisprudence is well settled. When, as in Orthopedic

Specialists, the Supreme Court does not make its adjudication retroactive, parties

whose cases were decided prior to the Supreme Court’s resolution of the

conflict are neither entitled to the benefit, nor saddled with the detriment, of the

Supreme Court’s determination. See Petrysian v. Metro. Gen. Ins. Co., 672 So. 2d

562, 563 (Fla. 5th DCA 1996) (“A change in the applicable rule of law resulting

from a later appellate decision in an unrelated case is not a ground to vacate a final

order. We regret that appellant was frustrated by the timing of the supreme court’s

decisions, but we cannot grant relief from the application of the law as it existed at

the time of her appeal.”) (citation omitted). Admittedly, this circumstance might

seem unfair to folks who would have won had the higher court ruled sooner, or if

their particular appellate tribunal had more presciently predicted how the higher

court ultimately would rule.

But this unfairness – or dissonance – is simply not error subject to a second-

tier certiorari writ. In fact, it is not error at all. As the majority concedes, the circuit

court in this case did not depart from the essential requirements of law. See

majority opinion at 3-4. Employing a de novo standard of review, the circuit

court’s appellate division relied upon appropriate precedent to affirm the trial

court’s construction of Allstate’s insurance policy. The appellate court’s only

26
“error” was failing to accurately predict which of two persuasive, yet competing,

precedents the Florida Supreme Court ultimately would adopt. Divergent results

happen when a state has multiple, independent appellate districts, and each district

has multiple appellate divisions.

In my view, the majority greatly expands the purview of the writ in order to

ensure that Allstate gains the benefit of a Supreme Court case decided almost three

years after Allstate’s case was adjudicated, and over a year after Allstate lost its

appeal. While a party with a pending appeal is generally entitled to the benefit of a

change of decisional authority, Santana v. Fla. Dep’t of Fin. Servs., 61 So. 3d 1262

(Fla. 3d DCA 2011), a party such as Allstate, whose appeal is final, is not entitled

to the benefit of a post-appeal change in decisional authority. Petrysian, 672 So. 2d

at 563; Theisen v. Old Republic Ins. Co., 468 So. 2d 434, 435 (Fla. 5th DCA

1985). This Court’s granting discretionary review and issuing a second-tier

certiorari writ to give Allstate the benefit of Orthopedic Specialists is tantamount

to giving Allstate an unauthorized “second appeal.” See Stilson v. Allstate Ins. Co.,

692 So. 2d 979, 982 (Fla. 2d DCA 1997) (“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.”). The majority gives Allstate this benefit despite Custer Medical Center’s

clear directive that second tier-certiorari review is severely limited, and despite the

27
appellate tribunal not having in any way departed from the essential requirements

of law.13

I respectfully dissent and would not grant certiorari review. As well

articulated by the majority and concurring opinions in this case, however, I

recognize the importance of consistency within Florida’s appellate districts.

Therefore, I would certify to the Florida Supreme Court, as a question of great

public importance, whether second-tier certiorari is appropriate to review (i) intra-

circuit and intra-district conflicts, and (ii) lower court appellate decisions in

conflict with later determinations of higher courts.

13“[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 Med. Ctr., 62 So. 3d at 1092 (citations omitted)
(emphasis added).

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