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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