I’d be surprised if any 2011 decision of Florida’s appellate courts has drawn more attention in legal, medical, and insurance professional circles than the Fourth District Court of Appeal’s decision in May (covered in this post) in Kingsway Amigo Insurance Company v. Ocean Health Inc. In case you missed it (i.e. you either aren’t a PI or insurance defense lawyer, a doctor that treats accident victims, or insurance company employee or you are and have been living in a cave for the last 6 months) the 4th DCA held in Kingways Amigo that auto insurers cannot rely on the 2008 amendments to Florida’s No Fault law (PIP) that allow PIP reimbursement rates to medical providers to be limited to 80% of 200% of Medicare Part B reimbursement amounts unless the applicable insurance policy says explicitly that providers’ reimbursement rates may be so limited.
There have been several further developments in and related to that litigation:
- The court’s decision has caused considerable angst to Florida automobile insurers, with 5 of them submitting amicus curiae briefs in support of Kingsway Amigo’s motion for rehearing and rehearing en banc by tthe 4th DCA. Nonetheless, the 4th DCA denied the motions. The 4th DCA’s decision has now become final, and is reported at 63 So.3d 63.
- As noted in the comments to my prior post on the case, the same issue had been teed up for the 3rd DCA in U.S. Security Insurance Company v. Professional Medical Group, Inc., raising the possibility that a decision in that case could either (a) solidify the 4th DCA’s holding if the 3rd DCA came out the same way; or (b) create a conflict among the Districts that would confer discretionary jurisdiction for Supreme Court review if the 3rd DCA disagreed with the 4th. But earlier this month the 3rd DCA declined to do either one, and relinquished jurisdiction over U.S. Security. Its reason for doing so appears to be that the parties’ briefing and oral argument revealed that the case was too “fact-specific.”
- Having been denied rehearing by the 4th DCA, and without the benefit of a conflicting (or any) decision in U.S. Security, Kingsway Amigo has asked the Florida Supreme Court to accept review over the case. It argues in its October 17, 2011 Brief on Jurisdiction* that the 4th DCA’s decision conflicts with statements by other Districts in certain cases involving the PIP statute. Ocean Health replies in its own Brief on Jurisdiction that there can be no direct and express conflict between Kingsway Amigo and any of the cases cited by the insurer because none of those decisions addressed the precise issue confronted by the 4th DCA, and, in fact, Kingsway Amigo addressed a matter of first impression in Florida appellate courts. Ocean Health even goes so far as to request that Kingsway Amigo be ordered to pay for its attorney’s fees.
FWIW, I don’t think the Florida Supreme Court is particularly likely to accept review of Kingsway Amigo. But the issue in dispute isn’t going away, and may well make it to the Court eventually, as I expect that other Districts will weigh in on the issue sooner or later.
* To request discretionary review by the Florida Supreme Court, parties generally must file a Notice to Invoke Discretionary Jurisdiction and a brief explaining why the Court has jurisdiction over the case and why it should choose to exercise that jurisdiction. The opposing party may then file an answer brief addressing those issues.)