Thursday, November 4, 2010

Florida Supreme Court Delivers Bunker Smack-Down on Ever-Expanding Cert Review!



No wonder the boys in the bunker have been issuing a lot of glorified PCAs lately  -- get a load of this epic smack-down by the Supremes today.

What I like about the opinion is the Court focuses on the proper scope of judicial review (a bugaboo of mine) and determines -- surprise -- that it somehow keeps expanding, rather than narrowing, as it makes its way up the judicial ladder:
The Third District premised its exercise of certiorari jurisdiction on the assertion that the circuit court appellate division “departed from the essential requirements of the law.” However, similar to its decision in Ivey, the district court did not supply any correct requisite analysis or sufficient rationale with regard to the manner in which the circuit court departed from the essential requirements of law in its application of the law with regard to directed verdicts. The Third District neither clarified what the circuit court held below nor did it analyze or address why this holding departed from the essential requirements of the law. The district court opinion contains no determination that a denial of procedural due process occurred, and the district court did not express the manner in which the circuit court applied an incorrect principle of law or that the decision constituted a miscarriage of justice, “as required by this Court‟s precedents.” Ivey, 774 So. 2d at 683; see also Educ. Dev. Ctr., Inc. v. City of W. Palm Beach Zoning Bd., 541 So. 2d 106, 108-09 (Fla. 1989).

Instead, the decision below conveys that the district court of appeal simply disagreed with the circuit court‟s determination and interpretation of the applicable law. See Ivey, 774 So. 2d at 683; Educ. Dev. Ctr., Inc., 541 So. 2d at 108-09. This disagreement is evidenced by the district court‟s reliance on clearly distinguishable and inapposite precedent to hold that an insured‟s attendance at a medical examination is a condition precedent to the existence of an auto insurance policy that provides PIP benefits and that, consequently, the insured rather than the insurer has the burden of proof on this issue. See Custer II, 990 So. 2d at 634-35. Logically, the circuit court could not have violated the essential requirements of law when that principle of law had never existed.

In addition, the district court improperly considered and incorrectly relied on language in United‟s policy which was contrary to existing statutory provisions, had not been advanced by the parties below, and was never involved in the consideration of the lower tribunals in the prior proceedings. After issuing an initial opinion that lacked any reference to the conditions provision in United‟s policy, the Third District ordered the record to be supplemented on rehearing with the trial transcript and evidence. The district court specifically requested that the parties provide the relevant insurance policy. The Third District then altered the fundamental underpinnings of its analysis to include a contractual provision which had not been advanced as dispositive to any issue in the proceedings below. Moreover, to support its analysis that attendance at a medical examination was a condition precedent to coverage, the district court incorrectly characterized a letter concerning Masis‟s failure to attend a testimonial examination under oath in August, not a medical exam, as referencing Masis‟s failure to attend the medical examinations scheduled in April. Of note, the letter does not support the Third District‟s condition precedent analysis because the relevant quote in the letter is from the policy, which designates attendance at a testimonial examination under oath, not a medical examination, as a condition precedent to receiving PIP benefits.

In contrast, the medical examinations provision, which immediately precedes the verbal exam provision, does not contain any reference to a “condition precedent,” as follows:
Proof of Claim; Medical Reports and Examinations; Payment of Claim Withheld. A soon as practicable, the person making claim, (including any assignees of the injured party) shall give to “us” written proof of claim, under oath. Such person shall submit to mental or physical examinations at “our” expense when and as often as “we” may reasonably require. A copy of the medical report shall be forwarded to such a person if requested in writing. If the person unreasonably refuses to submit to an examination “we” will not be liable for subsequent personal injury protection benefits.
(Emphasis supplied.) Moreover, the letter relied upon by the Third District was not advanced by the parties as relevant to consideration of the circuit court‟s decision and is contrary to the statutory provisions of mandatory PIP coverage.

Thus, the district court‟s actions and analysis are simply an improper de novo review in a “second appeal” rather than the limited review permitted on second-tier certiorari and incorrect in both substance and approach.
Other than that, I do want to point out that the Supremes had no problem with how the 3d DCA handles cert review.

Thank you to the tipster who forwarded this doozy!

23 comments:

  1. Southie,

    You didn't list the winners and losers.

    LOSERS
    The authors of the 3d DCA opinion: GERSTEN, C.J. and SHEPHERD (the author) and ROTHENBERG, JJ.

    WINNERS
    The Circuit Court panel: Jennifer Bailey, Marc Schumacher and Scott Silverman.

    ReplyDelete
  2. Shepherd, who hides behind purported doctrines limiting judicial discretion but who is activist to an extreme.

    ReplyDelete
  3. This will cut down on the Third's caseload significantly, since United Auto's petitions for cert(routinely granted) fill up its docket every week. Big loser--United Auto.

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