MIAMI – Florida’s 3rd District Court of Appeal recently applied a state Supreme Court opinion retroactively to a case involving an Allstate Insurance Co. policy for personal injury protection (PIP).

The move by the appeals court overrules the decision of a lower court and grants the personal injury insurer a win in its case against medical provider Hallandale Open MRI LLC.

The Florida Supreme Court’s opinion in Allstate v. Orthopedic Specialists, heard in January, was applied.

Based on that ruling, the three-judge panel contended that PIP policies that Allstate offers provide sufficient notification to the holders of such policies that payment made for such claims would be made on pay structure linked to the Medicare fees schedule. This counteracts a decision made by the appeals court that said that Allstate’s policy language had too much ambiguity. The court’s decision in that ruled in favor of Hallandale.

Now, the lower court’s decision is overturned because of the actions of the appeals court.

Michael A. Adams, a partner for Quintairos, Prieto, Wood & Boyer P.A. in Orlando, told the Florida Record that he agreed with the majority opinion.

“One of the largest hurdles in handling PIP cases throughout the state is the inconsistency of the state of the law; the handling of PIP cases in Central Florida is vastly different than in Miami, Jacksonville, Tampa, etc.,” Adams said. “This shouldn’t be the case.”

In the majority opinion, Judge Vance E. Salter wrote that “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.”

This ruling opens up an environment in which second-tier certiorari reviews can take place with Allstate taking the victory in the case.

Judge Thomas Logue issued a concurring opinion stating that the application of the higher court’s decision was “imperative.”

“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,” Logue wrote. The concurring opinion also commented on the need for consistency when in dealing with PIP cases.

Judge Edwin Scales issued a dissenting opinion, recognizing the need for equal application and consistency in these cases; however, he objected to this particular case on the grounds that the lower court’s decision from several months prior was enough. Scales said that the issuance of such opinion was “unprecedented” and exceeded the court’s jurisdiction of certiorari.

Adams disagreed.

“The 3rd DCA’s decision may be the first step in providing consistency throughout the state,” Adams said. “On any given day, in any given courtroom, attorneys will provide a litany of case law from circuit court appellate decisions from all over the state supporting their position; unfortunately, the opposing attorney will also provide case law, directly on point, from the remaining courts.”

Allstate v. Hallandale is one of the several thousands of cases like it heard before Florida’s many courts. Just like in this case, health care providers have argued that the policy language for PIP plans from Allstate’s insurance for motorists are vague and therefore unlawful. Predominately, these issues have arisen with plans issued between 2008 and 2013 after the state Legislature passed legislation that grants insurance companies that offer PIP products two ways of paying health care claims.

The legislation, passed in 2008, amended the state’s statutes to allow for PIP insurers to pay 80 percent of the incurred reasonable costs for medical procedure associated with the claim or pay out 200 percent using the Medicare fee schedule.

“The Florida Supreme Court held in Geico v. Virtual Imaging that the insurer was required to give notice to its insured by electing the permissive Medicare fee schedules in its policy before taking advantage of the Medicare fee schedule methodology to limit reimbursements,” Adams said.

In 2013, state lawmakers finally made the change in the statutes and mandated that every insurer follows the Medicare fee schedule.

Allstate has fought the changes in court ever since, with the majority of the suits against them pending throughout the state. Given the volume of cases, millions of dollars in past claims is at stake.

Peter Valeta of Cozen O’Connor, with Suzanne Youmans Labrit and Douglas Brehm of Shutts & Bowen LLP, serve as counsel for Allstate. Marlene Reiss served as counsel for Hallandale Open MRI.

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