Florida District Courts of Appeal

It’s been almost 5 years since the Florida Supreme Court issued its grand compromise decision in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).  As contemplated by that decision, many individual suits have been filed by Engle class members.  Some have been tried to a verdict or have been dismissed, and are now on appeal.  Can it be long before the Florida Supreme Court is compelled to step in to definitively resolve the next round of Engle issues?  

The District Courts of Appeal have recently been grappling with the thorny issues resulting from the Court’s decision to decertify the class, but allow class members to take advantage of 8 findings made by the Engle jury by way of res judicata

The 1st DCA gave an early interpretation of how to apply Engle in R.J. Reynolds Tobacco Co. v. Martin, decided in December 2010, in upholding a $28.3 million judgment in favor of a deceased smoker’s widow.  The Florida Supreme Court denied review in Martin in July. (RJR v Martin_07-19-2011_Order_Denying Review.pdf). 

Although the 11th Circuit had earlier offered its own thoughts on Engle, Martin stood as the only state appellate court decision on this score.  That changed on September 21, 2011, when the 4th DCA weighed in on Engle in R.J. Reynolds Tobacco Co. v. Brown, expressing some (but in my view, not much) disagreement with the 1st DCA’s application of it.  The tobacco industry defendants, which can’t be too happy with Engle or its aftermath, are no doubt chomping at the bit to use any disagreement among the DCAs to convince the Supreme Court to take up the case. 

Although it’s dangerous to try to read tea leaves, the differences between Martin and Brown, understood in context, don’t seem to me to be the type of conflict that would ordinarily win review, particularly while the issues are still percolating in the other Districts.  On the other hand, the defendants may take a bit more hope from Chief Judge May’s stinging concurrence in Brown, which questioned whether Engle can be applied as written without violating due process, an implication that could give the justices more of an impetus to address these issues sooner rather than later. 

And the Supreme Court will undoubtedly be asked to take up some of the other issues percolating in the Engle progeny cases, such as the Constitutionality of the statute passed after the State’s settlement with the Tobacco industry, which reduces the bonds that industry defendants must post for appeals.  In addition, although the 3rd DCA has yet to take up the core issue addressed in Martin and Brown, last week in Rey v. Phillip Morris, Inc., it interpreted Engle (and applied traditional conspiracy principles) to hold that any class member can sue Lorillard, Liggett, and Vector Group for their role in the conspiracy to conceal information, even though the class member didn’t smoke those companies’ cigarettes, and can take advantage of the Engle findings.  The Supreme Court will no doubt be asked to review that decision as well.      

So I have no doubt that the court will wade back into this controversy sooner or later.  The question is which one.

More details below.

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So much for easing back to work after the long weekend.  At least for judges in the First District and Fourth District Court of Appeal. 

As the Miami Herald reports, the 1st DCA is hearing consolidated oral argument this afternoon in Florida Gaming Centers, Inc. v. Florida Department of Business and Professional Regulation, and

Arbitration is thought to be a way to resolve disputes more quickly and without the burdens of litigation and appeals in court proceedings. More than 10 years ago, assisted living facilities and nursing homes in Florida began including arbitration agreements among the admissions documents new residents are required to sign. But judging from the seemingly

Losing at trial hurts. Getting hit with the bill for your adversary’s attorney’s fees makes it hurt ever-so-much more. That’s why fee-shifting under Florida Statutes Section 768.79 — available to parties that make a proposal for settlement under Rule 1.442 — can be such a powerful tool. It’s probably also why lawyers who refuse an

It’s hard to confuse the First District Court of Appeal of Florida (in Tallahassee) with its namesake in California. It’s even harder to confuse with that court’s San Francisco neighbor, the U.S. Court of Appeals for the Ninth Circuit.  The 9th Circuit has a reputation (deserved or not) for issuing controversial decisions on hot button issues – often to the displeasure of the U.S. Supreme Court.

The 1st DCA (of Florida) has no such reputation. So some might be surprised by the outcome of two recent worker’ compensation appeals (the 1st DCA has jurisdiction over all workers’ compensation appeals). In recent weeks, the 1st DCA has handed down decisions in two separate cases affirming the right of immigrants working in the U.S. illegally to receive workers’ comp benefits.

In the first of those decisions, HDV Construction Systems, Inc. v. Aragon, No. 1D10–6401 (handed down on June 28, 2011), the 1st DCA held that an employer was on the hook for permanent total disability (PTD) benefits for an unauthorized worker because it knew or should have known that he could not work legally in the U.S., but continued to employ him anyway until he was permanently injured.

In the second, Garcia-Lopez v. Affordable Plumbing/Vinings Insurance Company, No. 1D10–4949 (issued on July 18, 2011), the 1st DCA required an employer to cover workers’ comp benefits for a Mexican immigrant (employed through a third party with knowledge of his status) who was underage in addition to lacking authorization to work in the U.S., rejecting the argument that he could only be compensated for lost income if he proved that he reported his income to the IRS.

What happened?  Has the ideological outlook of San Francisco overtaken Tallahassee?! I don’t think so, as I’ll explain below.

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The Florida Motor Vehicle No Fault Law has been described over and again by the Florida Supreme Court as designed to “provide swift and virtually automatic payment” for medical treatments to car accident victims “so that the injured insured may get on with his life without undue financial interruption.”  [E.g., Custer Med. Ctr. v. United Auto Ins. Co., No. SC 08-2036, 2010 WL 4340809]. 

But under recent 4th DCA decisions, payment of Personal Injury Protection (PIP) benefits for medical treatment seems anything but “virtually automatic.”  For every PIP claim they submit, providers are now responsible for knowing in advance, and specifying on their claim forms, the exact amount the insurer is required by law to pay for the treatment at issue.  Getting paid from PIP benefits has thus become even harder than claiming payment from standard health plans. 

 Background – the PIP Statute

In case you need a refresher on the PIP payment procedure (codified at Florida Statutes Section 627.736) here’s my simplified gloss:

1. Insured accident victim sees medical provider.

2. Medical provider must notify the accident victim’s car insurer of the fact and amount of the claim within 35 days of treating the insured (or must give notice of starting treatment within 21 days, and submit bills within 75 days);

a. On an approved standard claim form that includes the amount of the claim and the provider’s medical license information;

b. Charging the insurer and the insured “only a reasonable amount,” determined by looking at the provider’s usual charges for the services in question, other providers’ charges for those services, insurers’ fee schedules, and other information; (More on this detail later).

3. Insurer reimburses medical provider;

a. A reasonable amount based on statutory criteria; or

b. May limit its payments to 200% of the amount allowed by Medicare Part B for non-hospital treatments, or if not covered by Medicare Part B, to 80% of the maximum amount allowed for workers’ compensation claims.

4. The insurer must pay within 30 days of receiving “reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy.”

5. Payment is “overdue” if not made within 30 days, unless “the insurer has reasonable proof to establish that the insurer is not responsible for the payment.”

6. If the insurer doesn’t pay the provider, the provider must send the insurer a demand letter.

a. The demand letter can’t be sent until the payment is “overdue”; and

b. Must “state with specificity” the name of the provider that treated the insured and “each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due.”

7. If the insurer pays in response to the demand letter, it must pay also pay a 10% penalty, up to $250.

8. If it still doesn’t pay, the provider or insured can sue, and if successful, recover the claimed amount, the 10% penalty, and attorneys’ fees.

In other words, at first glance, PIP appears to work like other health insurance.   The provider submits a claim, the insurer determines whether it’s covered, and if so, it pays.  One would assume that the amount the provider may charge may be greater than the amount the insurer deems to be reasonable or whatever other measure it uses to value claims, and that the insurer will pay less than the amount billed.   The difference is that PIP is “swift” and “automatic”: coverage is automatic up to $10,000 regardless of fault; time periods are shorter; there are penalties for paying late, and there’s a procedure for resolving disputes quickly. 

Does the PIP Statute Seek to Prevent Providers From Asking for Too Much?

In its May 4, 2011 decision in MRI Associates of America, LLC v. State Farm Fire & Casualty Company, No. 4D10-2807, the 4th DCA held that the PIP statute streamlines payment procedures in another way: By eliminating “gamesmanship” in the prices providers charge for treatment.

The result of MRI is perhaps not a shock for providers in Palm Beach County that regularly treat PIP insureds, because the Palm Beach Circuit Court reached the same result in an influential 2007 decision. (Because PIP cases by definition, involve less than $10,000 in controversy, in Florida’s court system structure, they are tried in County Courts. Three-judge panels of Circuit Court judges hear most appeals and often have the final word on PIP issues.)

But other providers may be surprised to learn that if they want to get paid by a PIP insurer, they will have to submit a claim stating not the amount the provider charges for treatments, but the amount the insurer will pay for the treatments under its policy.

The Facts Underlying the MRI Decision

The provider in MRI submitted claims of $1816.17 and $1707.33 for administering MRIs to the insured.  The insurer denied the claims.  The provider then sent a demand letter restating the charges claimed.  The demand letter also said the amounts of the claims “if Paid at 80%,” would be $1146.22 (which is actually 80% of $1432.78) and 1061.31 (80% of $1326.64).

The Holding of MRI

The 4th DCA held that the provider’s demand letter was premature, because despite the passage of more than 30 days since the provider billed the insurer, payment to the provider wasn’t “overdue.” Why not? According to the court, the provider had never the insurer “notice of the amount due” for treating the insured.

True, the provider had submitted a claim form to the insurer. But, the court explained, the claim form request payment of the amount charged by the provider, not “the exact amount owed under the statute”, which the court said, at that time was capped at 175% of the Medicare Part B maximum in 2001. So the claims did not give the insurer “written notice of the fact of a covered loss and of the amount of” the loss. Without that notice, no payment ever became overdue.

While unstated in the court’s opinion, if no payment became ever overdue, no payment ever became due either. And since 35 (or 75) days have passed since the treatment, the result of the 4th DCA’s holding seems to be that provider is out of luck – and the insurer is off the hook.

The Court’s Reasoning

Here’s the rub. The court took a circuitous route to reach its conclusion. That’s because subparagraph (5)(d) sets forth the claims procedure and doesn’t say that claims must “specify the exact amount owed under the statute.” It only says that the provider must completely fill out one of the approved standard claim forms and submit it within the specified time period.

It’s only in describing the requirements of demand letters, in subparagraph (10) that the PIP statute requires the provider to “state with specificity” the names of all treating medical providers and to provide “an itemized statement specifying each exact amount…claimed to be due.”

But the 4th DCA held that both claim forms and demand letters, based on the reasoning of a Palm Beach County Circuit Court decision in an appeal from County Court. The analysis involves two steps. First, the 4th DCA read subparagraph (10)’s “exact amount…claimed to be due” language as requiring demand letters to state not the amount of the provider’s charges, but “the exact amount owed under the statute” per the insurer’s policy.

Then the court observed that subparagraph (10)(b)3 says that a completed claim form “may be used as the itemized statement,” required in a demand letter. If it can be used for that purpose, the 4th DCA reasoned, a completed claim form, must also state the “exact amount owed under the statute.”

My analysis below the fold.  

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Florida’s Third District Court of Appeals had harsh words for a foreclosing bank’s counsel in Jade Winds Association v. Citibank, N.A., No. 3D11-275, released on Wednesday, May 4, 2011.

The 3rd DCA not only reversed an order that had cancelled a foreclosure sale at the bank’s request, but called out the bank’s counsel for