A divided state appellate court refused to accept jurisdictionon an insurance question, after siding with the insurer in asimilar case in July.

The Florida ThirdDistrict Court of Appeal Wednesday rejected an interpretivequestion on insurance policy language outlining payments formedical companies that treat injured accident victims. It refused arequest for a writ of certiorari from Allstate Fire andCasualty Insurance Co. to quash lower tribunal rulings in favorof medical providers seeking higher payments under personal injuryprotection, or PIP, policies.

Allegations of vague policy language

Providers in cases across the state allege Allstate and otherinsurers use vague language that falls short of specifying feespaid for services to insured patients after car accidents. Theirlitigation raised a similar question before the courts: Does thelanguage of PIP policies provide adequate notice of limitedreimbursement under Medicare Part B fee schedules?

At trial and on appeal before Miami-Dade Circuit Court'sappellate division, Allstate lost to medical provider HallandaleOpen MRI LLC. But it raised a challenge amid widespread splitswithin state and local courts. Its 2-1 rejection by the Third DCAthis week followed a favorable ruling in that court in a similarcase in July.

In the earlier case, the Third DCA found the policy languagesufficient, but that decision conflicted with a finding from itssister appellate court in the Fourth District.

Those conflicting findings led the Florida Supreme Court toaccept review of decisions from the Third, Second and First DCAs,which found the PIP policies clearly articulated limitedreimbursement based on Medicare Part B fee schedules, and anopposing ruling from the Fourth DCA.

Defer to Florida Supreme Court

This week, the Third DCA deferred to the high court. It ruled itlacked jurisdiction under the standard for second-tier certiorarireview, which requires a violation of a "clearly establishedprinciple of law resulting in a miscarriage of justice" in priorproceedings.

"Granting the petition in this case would be tantamount tofaulting the circuit court appellate division for lacking a crystalball or Ouija board that would have revealed this court's decisionissued seven months later," Third DCA Judge Vance Salter wrote inthe majority decision with Judge Edwin Scales III.

But District Judge Thomas Logue issued a seven-page dissent,noting the "welter of conflicting decisions" by judges and judicialpanels.

"It is clearly a miscarriage of justice to prevent furtherreview in a manner that causes the identical cases of similarlysituated persons in the same court to be decided differently basedon conflicting legal interpretations," Logue wrote. "And this clearmiscarriage of justice resulting from the failure to allow reviewreflects a departure from the most essential legalrequirement—equality before the law. No other legal remedy existsto stop this miscarriage of justice here except a writ ofcertiorari."

Multitude of courts unable to agree

Miami attorney Douglas Brehm and Suzanne Youmans Labrit of Shutts& Bowen in Tampa teamed with Peter J. Valeta of Cozen O'Connorin Chicago to represent Allstate. Miami lawyer Marlene S. Reissrepresented Hallandale.

"We are happy to see the majority's thoughtful opinion regardingits limited second-tier jurisdiction," Reiss said. "As for theissue implicated in this case, which is currently in the FloridaSupreme Court, we are anxious to see the Supreme Court's final wordinterpreting an ambiguous insurance policy provision on which amultitude of county, circuit and district courts could not agreefor the past nine years."

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Samantha Joseph is a writer for the Daily Business Review.She can be reached at [email protected].