IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA CASE NO.: SC05-1459 DR. ROBERT D. SIMON, M.D., P.A. a/a/o ERIC HON, Petitioner, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Respondent. On Review From The District Court of Appeal Fourth District Of Florida ANSWER BRIEF ON JURISDICTION OF RESPONDENT Douglas H. Stein, Esq. Anania, Bandklayder, Blackwell, Baumgarten, Torricella &Stein 4300 Bank of America Tower 100 Southeast Second Street Miami, Florida 33131-2144 Telephone: (305) 373-4900 Facsimile: (305) 373-6914 Counsel for Respondent

TABLE OF CONTENTS Table of Authorities... ii Introduction... 1 Reply Statement of the Case and Facts... 1 Summary of the Argument... 2 Argument... 3...I(A) THE A. Any Conflict Between Simon And Other Cases Decided By The Fourth District Is Not A Sufficient... B. A Violation Of The Florida Constitution Is Not A... C. No Case Cited By Petitioner Conflicts With Simon And Cannot Serve As A Sufficient Basis Upon Which... I(B) THE FOURTH DISTRICT COURT OF APPEAL HAS NOT CERTIFIED A QUESTION TO BE OF GREAT... PUB Conclusion... 10 Certificate of Service... 10 Certificate of Type Size... 10

-i- TABLE OF AUTHORITIES Cases Aguilera v. Inservices, Inc.,...905 So. 2d 84 (Fla. 2005) 1 Aldana v. Colonial Palms Plaza, Ltd.,... 591 So. 2d 953 (Fla. 3d DCA 1992) 4 Allstate Insurance Co. v. Langston,...655 So. 2d 91 (Fla. 1995) 4, 9 Baxter v. Royal Indemnity Co., 285 So. 2d 652 (Fla. 1 st DCA 1973), cert.... discharged, 317 So. 2d 725 (Fla. 1975) 8 Bennett v. State Farm Mutual Automobile Insurance Co.,... 580 So. 2d 217 (Fla. 2d DCA 1991) 5 Blue Cross & Blue Shield of Florida, Inc. v. Steck,...818 So. 2d 465 (Fla. 2002) 3, 5 Boulevard National Bank v. Air Metal Industries Inc.,...176 So. 2d 94 (Fla. 1965) 4 Curry v. State,...682 So. 2d 1091 (Fla. 1996) 3, 5 Dunmore v. Interstate Fire Insurance Co.,...301 So. 2d 502 (Fla. 1 st DCA 1974) 7

Farinas v. Florida Farm Bureau General Insurance Co.,... 850 So. 2d 555 (Fla. 4 th DCA 2003) 5 Fortune Insurance Co. v. Pacheco,... 695 So. 2d 394 (Fla. 3d DCA 1997) 7 Gandy v. State,...846 So. 2d 1141 (Fla. 2003) 3 Government Employees Insurance Co. v. Gonzalez,... 512 So. 2d 269 (Fla. 3d DCA 1987) 6, 7 -ii- Government Employees Insurance. Co. v. Robinson, 581 So. 2d 230 (Fla. 3d DCA 1991), rev....denied, 595 So. 2d 557 (Fla. 1992) 8 Hardee v. State,...534 So. 2d 706 (Fla. 1988) 1 In re Commitment of Branch,...890 So. 2d 322 (Fla. 2004) 7 Ivey v. Allstate Ins. Co.,...774 So. 2d 679 (Fla. 2000) 6 Margiotta v. State Farm Automobile Insurance Co.,... 662 So. 2d 135 (Fla. 4 th DCA 1993) 3 Nuero-Imaging Associates, P.A. v. Nationwide Insurance Co., 10 Fla. L. Weekly Supp. 738... (Fla. Palm Beach Cty. Ct. Jan. 7, 2002) 5, 6 Professional Consulting Services, Inc. v. Hartford Life and Accident Insurance Co.,... 849 So.2d 446 (Fla.2d DCA 2003) 8 4

Reaves v. State,...485 So. 2d 829 (Fla. 1986) 1 Simon v. Progressive Express Ins. Co.,...904 So. 2d 449, 449 (Fla. 4 th DCA 2005) pas St. Mary s Hospital, Inc. v. Schocoff,... 725 So. 2d 454 (Fla. 4 th DCA 1999) 3 State Farm Fire and Casualty Co. v. Ray,... 556 So. 2d 811 (Fla. 5 th DCA 1990) 4 State Farm Mutual Automobile Insurance Co. v. Horkheimer, 814 So. 2d 1069 (Fla. 4 th DCA), rev.... denied, 835 So. 2d 266 (Fla. 2002) 8 United Automobile Insurance Co. v. Rodriguez,...808 So. 2d 82 (Fla. 2002) 7 -iii- Rules and Statutes Article V, Section 3(b) of the Florida Constitution... 3 Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv)... 4 Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v)... 5 Florida Statute 627.736(4)(b)... 5 5

-iv- INTRODUCTION Respondent, Progressive Express Insurance Company ( Progressive ), files this Answer Brief on Jurisdiction in response to the Petitioner s Second Amended Brief on Jurisdiction filed by Petitioner, Robert D. Simon, M.D., P.A. a/a/o Eric 6

Hon, in which Petitioner argues that the decision of the Fourth District Court of Appeal in Simon v. Progressive Express Ins. Co., 904 So. 2d 449, 449 (Fla. 4 th DCA 2005)( Simon ), conflicts with the decisions of various district courts of appeal and other sources of Florida law. As Progressive will demonstrate, there is no conflict upon which the jurisdiction of this Court can be invoked. Throughout this Brief, the symbol P.B. refers to Petitioner s Brief and all emphasis is added. REPLY STATEMENT OF THE CASE AND FACTS Petitioner s Statement of the Case and Facts violates a basic premise governing this Court s discretionary jurisdiction. Throughout its Statement, Petitioner refers to matters in the Record which are nowhere to be found in the decision from which Petitioner seeks review. Petitioner actually provides Record references in its Brief. (P.B. 1-3). This Court has consistently held that: The only facts relevant to our decision to accept or reject such petitions are those facts contained within the four corners of the decisions allegedly in conflict... Thus, it is pointless and misleading to include a comprehensive recitation of facts not appearing in the decision below, with citations to the record, as petitioner provided here. Reaves v. State, 485 So. 2d 829, 830 n. 3 (Fla. 1986). See also Aguilera v. Inservices, Inc., 905 So. 2d 84, 101 (Fla. 2005); Hardee v. State, 534 So. 2d 706, 708 n. 1 (Fla. 1988). 7

In light of these axioms, Progressive provides this Court with the actual recitation of the facts contained in the decision from which Petitioner seeks review, and requests that this Court determine its jurisdiction based solely on those facts: Simon, 904 So. at 449. Physician, Robert Simon (Simon), accepted a reduced payment from Progressive Express Insurance (Progressive) for services rendered to a policy holder who had been in an auto accident. Simon cashed the payment check without protest. Before paying Simon, Progressive informed him, along with other providers whose claims are reduced or denied, that, as established by section 627.736, Florida Statutes (PIP statute), upon submission of new information, a denied or reduced claim would be reconsidered. At a later date, Simon resubmitted the claims for the balance. Progressive then advised Simon that the remaining funds were committed to another provider because he, Simon, accepted the partial payment without advising Progressive that the claim would be re-submitted. Simon claims Progressive was under the obligation to hold a sum in reserve indefinitely to cover the partially denied claims. Summary judgment was granted in favor of Progressive. We affirm. SUMMARY OF THE ARGUMENT Any conflict that might exist between Simon and any other Fourth District decision or the Florida Constitution, is insufficient to invoke the jurisdiction of this Court. Moreover, Simon does not conflict with any other case of another District Court of Appeal or this Court. In addition, the Fourth District did not certify any 8

question to be of great public importance. This Court should decline to accept jurisdiction over this case. ARGUMENT I(A). THERE IS NO CONFLICT BETWEEN SIMON AND ANY DECISION OF ANOTHER DISTRICT COURT OF APPEAL OR THIS COURT. The jurisdiction of this Court extends only to the narrow class of cases enumerated in Article V, Section 3(b) of the Florida Constitution. Gandy v. State, 846 So. 2d 1141, 1143 (Fla. 2003). Petitioner seeks to invoke the discretionary jurisdiction provided to this Court to review decisions of district courts of appeal that directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law. Fla. R. App. P. 9.030(a)(2)(A)(iv). Cases distinguishable on their facts do not satisfy the requirement that the cases conflict and cannot serve as the basis for invoking jurisdiction. Blue Cross & Blue Shield of Fla., Inc. v. Steck, 818 So. 2d 465 (Fla. 2002); Curry v. State, 682 So. 2d 1091 (Fla. 1996). In the instant case, none of the cases, or any other legal authorities, cited by Petitioner satisfies the requirements for invoking the jurisdiction of this Court. 9

A. Any Conflict Between Simon And Other Cases Decided By The Fourth District Is Not A Sufficient Basis Upon Which To Invoke Jurisdiction. Petitioner claims that Simon conflicts with Margiotta v. State Farm Automobile Insurance Co., 662 So. 2d 135 (Fla. 4 th DCA 1993) and St. Mary s Hospital, Inc. v. Schocoff, 725 So. 2d 454 (Fla. 4 th DCA 1999). However, any conflict between those cases and Simon cannot form the basis to invoke this Court s jurisdiction because they are decisions of the Fourth District and, therefore, do not constitute a conflict with a decision of another district court of appeal as required by Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv). B. A Violation Of The Florida Constitution Is Not A Sufficient Basis Upon Which To Invoke Jurisdiction. Petitioner claims that Simon violates various provisions of the Florida Constitution. (P.B. 4, 7, 9). As stated above, Rule 9.030(a)(2)(A)(iv) limits this Court s jurisdiction to review only those decisions that conflict with a decision of another district court of appeal or of the supreme court, and does not provide that a violation of the Florida Constitution can serve as a ground for invoking the discretionary jurisdiction of this Court. This Court s discretionary jurisdiction cannot be invoked by any conflict other than one between appropriate court decisions. See Allstate Ins. Co. v. Langston, 655 So. 2d 91, 92 n. 1 (Fla. 10

1995)(jurisdiction cannot be invoked based on conflict with rule of civil procedure). C. No Case Cited By Petitioner Conflicts With Simon And Cannot Serve As A Sufficient Basis Upon Which To Invoke Jurisdiction. Petitioner first claims that Simon conflicts with Boulevard National Bank v. Air Metal Industries Inc., 176 So. 2d 94 (Fla. 1965), State Farm Fire and Casualty Co. v. Ray, 556 So. 2d 811 (Fla. 5 th DCA 1990) and Aldana v. Colonial Palms Plaza, Ltd., 591 So. 2d 953 (Fla. 3d DCA 1992), because those cases recognize that the so-called English rule determining the priority of successive assignments applies in Florida, and the Fourth District determined that Petitioner did not have a priority in Simon. Contrary to Petitioner s insinuation, the Fourth District did not hold that the English rule is inapplicable in Florida. Rather, it held that the English rule is inapplicable in this case. Further, because none of the cases cited by Petitioner involved a case such as here where: (1) a medical provider accepted payment of PIP benefits from an insurer with no protest; (2) the medical provider was informed by the insurer that an amended claim could be submitted; and (3) the medical provider failed to re-submit the claim, the cited cases are wholly distinguishable from the instant case, and cannot be the basis for a conflict. Blue Cross, 818 So. 2d at 465; Curry, 682 So. 2d at 1091. 11

Simply stated, the English rule does not apply when, as in Simon, a medical provider accepts a reduced payment without protest. 1 The PIP statute expressly provides the mechanism by which an insurer may reduce a medical bill. Fla. Stat. 627.736(4)(b). Upon receipt of a bill, the insurer has thirty (30) days from receipt of a medical bill within which to investigate the bill, determine whether it should be paid, and if so, whether the bill, among other considerations, is unreasonable and should be reduced to a reasonable rate. Fla. Stat. 627.736(4)(b). In fact, in accordance with the insurer s duty to maximize the amount of coverage available under the policy, 2 it is a PIP insurer s duty to reduce those bills it deems unreasonable, and preserve as much of the available benefits to pay other bills. An insurer who adheres to the statutory scheme, as Progressive did in this case, should not be put at risk for fulfilling its duties owed to its insured by paying the legitimate claims of other medical providers. 1 Courts have expressly held that the English rule does not apply to such a situation. Nuero-Imaging Assocs., P.A. v. Nationwide Ins. Co., 10 Fla. L. Weekly Supp. 738, 739 (Fla. Palm Beach Cty. Ct. Jan. 7, 2002). 2 See, e.g., Farinas v. Florida Farm Bureau Gen. Ins. Co., 850 So. 2d 555 (Fla. 4 th DCA 2003), rev. denied, 871 So. 2d 872 (Fla. 2004)(where there are multiple claimants, policy limits should not be exhausted without an attempt to settle as many claims as possible); Bennett v. State Farm Mut. Auto. Ins. Co., 580 So. 2d 217 (Fla. 2d DCA 1991)(at insured s request, insurer should apply payment of medical bills to medical payment benefits in order to maximize PIP coverage for wage loss claim). 12

If, as suggested by Petitioner, and rejected in Simon, an insurer is required to set aside the reduced amounts because the medical provider might at some time in the indefinite future dispute the reduction, those funds will be unavailable to pay bills which are reasonable and should be paid. Contrary to the legislative intent of providing swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption, Ivey v. Allstate Insurance Co., 774 So. 2d 679, 683-84 (Fla. 2000), those funds could be unavailable for the entire five-year period of the statute of limitations governing the potential claim of the medical provider whose bill has been reduced. Such a rule of law would put the insured under the probable risk of being sued by those medical providers whose bills are reasonable and owing. See Nuero-Imaging, 10 Fla. L. Weekly Supp. at 738 ( [T]here would be as many lawsuits as there were providers who didn t get fully paid. This is not a reasonable requirement to hold over an insurance company. ). The law imposes no duty on an insurer to retain funds at the peril of the insured without the medical provider at least having notified the insurer of a dispute. Because the three cited cases did not concern the unique facts as presented in Simon, they do not create a conflict sufficient to invoke the jurisdiction of this Court. Petitioner next contends that Simon conflicts with Government Employees 13

Insurance Co. v. Gonzalez, 512 So. 2d 269 (Fla. 3d DCA 1987), where the court held that when faced with competing claims to PIP benefits, the insurer cannot simply not pay, but should either make a check jointly payable to the competing claimants, or file an interpleader action. Gonzalez is distinguishable on its facts from Simon because in Simon there were no competing claims. Rather, Petitioner did not notify Progressive of its objection to the initial payment until after the remaining PIP benefits had been paid to other providers. Accordingly, no conflict exists upon which this Court s jurisdiction can be based. Petitioner next contends that Simon conflicts with United Automobile Insurance Co. v. Rodriguez, 808 So. 2d 82 (Fla. 2002), Fortune Insurance Co. v. Pacheco, 695 So. 2d 394 (Fla. 3d DCA 1997) and Dunmore v. Interstate Fire Insurance Co., 301 So. 2d 502 (Fla. 1 st DCA 1974), in which the courts held that, pursuant to the PIP statute, an insurer has thirty days in which to authenticate a claim. Simon does not conflict with those cases. The Fourth District did not hold that an insurer has in excess of thirty days in which to authenticate a claim. In addition, there is no issue here as to whether Progressive investigated the claim and timely paid what it determined to be a proper amount. Rather, the issue presented in Simon, which was not presented in the cited cases, was whether Progressive could be liable for amounts in excess of the policy limits where Petitioner accepted a 14

reduced payment without protest, and only after Progressive paid the full amount of the PIP benefits to which its insured was entitled, made a claim for the reduced amount. Petitioner next contends that Simon conflicts with In re Commitment of Branch, 890 So. 2d 322 (Fla. 2004) where, in determining whether a Ryce Act proceeding was constitutional, the Court stated that due process ensures a right to be heard at a meaningful time and in a meaningful manner. Due process is not implicated in Simon. To the extent that Petitioner s right to be heard regarding the reduced payment was addressed at all, the Fourth District noted that [b]efore paying Simon, Progressive informed him, along with other providers whose claims are reduced or denied, that, as established by [the PIP statute], upon submission of new information, a denied or reduced claim would be reconsidered. Simon, 904 So. 2d at 449. As noted in Simon, Petitioner never resubmitted its claim. Nothing in Simon prevents a medical provider from asserting a claim within the terms of the PIP statute and the insurance policy. In short, Simon held that Progressive could not be liable in excess of its policy limit. That holding conflicts with no other case, and is consistent with the unwavering principle that, in the absence of a finding of bad faith, an automobile insurance carrier s liability is restricted to the amount of its 15

coverage limits. Government Employees Ins. Co. v. Robinson, 581 So. 2d 230, 231 (Fla. 3d DCA 1991), rev. denied, 595 So. 2d 557 (Fla. 1992). See also, State Farm Mut. Auto. Ins. Co. v. Horkheimer, 814 So. 2d 1069, 1071 (Fla. 4 th DCA), rev. denied, 835 So. 2d 266 (Fla. 2002)(same). There was no suggestion in Simon that Progressive acted in bad faith. Thus, the law governing the relationship between Progressive and its insured is that of contract. Baxter v. Royal Indem. Co., 285 So. 2d 652, 657 (Fla. 1 st DCA 1973), cert. discharged, 317 So. 2d 725 (Fla. 1975). As an assignee of its insured, Petitioner obtained the same contractual rights under the policy that the insured had possessed. Professional Consulting Servs., Inc. v. Hartford Life and Accident Ins. Co., 849 So.2d 446 (Fla.2d DCA 2003). Thus, the only duty owed to Petitioner was to pay PIP benefits as provided in the policy. Progressive paid the full amount of its insured s available PIP benefits. The fact that, after the full amount of the PIP benefits had been paid by Progressive, Petitioner notified Progressive that it was disputing the amount it was paid, in no manner alters Progressive s contracted-for obligations. Simon does not conflict with any other case of another District Court of Appeal or this Court. Accordingly, there is no basis upon which to invoke the jurisdiction of this Court. 16

I(B). THE FOURTH DISTRICT COURT OF APPEAL HAS NOT CERTIFIED A QUESTION TO BE OF GREAT PUBLIC IMPORTANCE. Petitioner also attempts to invoke the jurisdiction of this Court pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) on the basis that the county court had certified a question of great public importance. (P.B. 10). However, Rule 9.030(a)(2)(A)(v) provides that the jurisdiction of this Court may be sought to review... decisions of district courts of appeal that... pass upon a question certified to be of great public importance. This Court has recognized that it may only review questions of great public importance that are certified by a district court of appeal. Allstate Ins. Co. v. Langston, 655 So. 2d at 92 n. 1. In this case, the Fourth District Court of Appeal did not certify any question to be of great public importance. Thus, Rule 9.030(a)(2)(A)(v) cannot serve as a basis for this Court s jurisdiction. CONCLUSION Based on the foregoing arguments and authorities, this Court should decline 17

to accept jurisdiction over this case. Respectfully submitted, Anania, Bandklayder, Blackwell, Baumgarten, Torricella &Stein 4300 Bank of America Tower 100 Southeast Second Street Miami, Florida 33131-2144 Telephone: (305) 373-4900 Facsimile: (305) 373-6914 By: Douglas H. Stein Fla. Bar No. 355283 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was forwarded via U.S. Mail this 3rd day of November, 2005 to Jeff D. Vastola, Esq., One Clearlake Centre, 250 Australian Avenue South, Suite 1404, West Palm Beach, Florida 33401 and Harley Kane, Esq., Kane & Kane, 4800 North Federal Highway, Suite 101-E, Boca Raton, Florida 33431. By: Douglas H. Stein CERTIFICATE OF TYPE SIZE In accordance with Florida Rule of Appellate Procedure 9.210(a)(2), this Brief has been prepared using Times New Roman 14 point font. 18

By: Douglas H. Stein 19