author: ROTHENBERG, J.

text:
    Alberto GOMEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2443.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2014.
    Rehearing Denied April 11, 2014.

      Alberto Gomez, in proper person.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   ROTHENBERG, J.

The defendant, Alberto Gomez, appeals the trial court’s order denying his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.

The defendant was tried and convicted on March 4, 1982, for several counts of armed robbery and one count of first degree murder. Since the defendant’s convictions and sentences were affirmed on appeal, he has filed numerous motions and petitions seeking postconviction relief. In fact, he has previously raised the same grounds he has raised in his current motion. Although the defendant concedes that he has previously and unsuccessfully raised the same grounds as he raises in his current motion, he contends that no court has decided his claim on the merits. Although we conclude that the defendant’s motion is procedurally barred by the law of the case doctrine, we briefly address the merits and affirm.

The defendant contends his sentence is illegal because the written sentence does not conform to the trial court’s oral pronouncement. Specifically, the defendant claims that when orally pronouncing his sentence for first degree murder, the trial court stated that he would be eligible for parole after he served twenty-five years, but that the written sentencing order did not reflect his parole eligibility.

Although such a claim is cognizable under rule 3.800(a) if the sentencing error may be resolved as a matter of law by merely examining the face of the record, see Williams v. State, 957 So.2d 600, 603-04 (Fla.2007), the defendant has not provided us with a record to review. “[A] defendant [may not] claim a sentence is illegal based on an alleged discrepancy between an oral pronouncement and a written sentence ... without a transcript of the sentencing hearing or other indisputable evidence of record to support the claim.” Lopez v. State, 2 So.3d 1057, 1059 (Fla. 3d DCA 2009) (alterations in original) (quoting Nielson v. State, 984 So.2d 587, 588 (Fla. 2d DCA 2008)). Because the defendant has failed to attach a transcript of the sentencing hearing or other irrefutable evidence to support his claim, his motion was legally insufficient, and it was therefore properly denied by the trial court.

However, we note that the defendant’s life sentence imposed as to count nine of the indictment for first degree murder under section 775.082(1), Florida Statutes (1981), provides that a person convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than twenty-five years before becoming eligible for parole. This statute has been interpreted to necessarily confer parole eligibility after twenty-five years even without such pronouncement in the final sentencing order. See Menendez v. State, 976 So.2d 81, 82 (Fla. 3d DCA 2008). Thus, whether or not the sentencing order contains language reflecting the eligibility for parole after serving twenty-five years is immaterial to the legality of the sentence, as the statute is self-executing. See Jenkins v. State, 556 So.2d 427, 428 (Fla. 4th DCA 1989) (holding that the failure to include the twenty-five year mandatory minimum language is not fatal to implementation of section 775.082(1), as the statute is self-executing).

Additionally, we note that the Florida Department of Corrections has fully recognized and applied section 775.082(1), and has included the twenty-five year minimum mandatory provision for the defendant’s first degree murder conviction in its commitment documents. Although the defendant has served the twenty-five year minimum mandatory sentence for his first degree murder conviction, he has not served the three consecutive three-year minimum mandatory sentences imposed on his three armed robbery convictions. He, therefore, remains ineligible for consideration for parole at this time.

Because the defendant’s sentence is not illegal and the defendant is not presently parole eligible, the Florida Department of Corrections is not illegally holding the defendant, and the trial court did not err by denying the defendant’s postconviction motion. We also remind the defendant that when he becomes eligible for parole, it will still be within the Florida Parole Commission’s discretion whether to grant the defendant parole. Such release is not mandatory.

Affirmed.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Arthur P. HOFFMAN, a/k/a Paul Hoffman, Appellant, v. BANKUNITED, N.A., as successor in interest to Bankunited, FSB, Appellee.
    No. 2D12-6255.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2014.
    Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, for Appellant.
    Gary M. Carman of Gray Robinson, P.A., Miami, for Appellee.
   SILBERMAN, Judge.

Arthur P. Hoffman appeals the final judgment of foreclosure entered in favor of BankUnited, FSB, and raises four issues. As to the three issues regarding the sufficiency of the evidence to support the final judgment, we conclude that Hoffman is not entitled to relief and affirm without discussion. On the fourth issue, we agree that the foreclosure sale of the property must be set aside because the sale was conducted while Hoffman’s timely motion for rehearing was pending. See Wollman v. Levy, 489 So.2d 1239, 1239 (Fla. 3d DCA 1986). Accordingly, we vacate the foreclosure sale. Because the trial court disposed of the rehearing motion some time after the sale, the court may again order the foreclosure sale of the property on remand.

Affirmed in part, vacated in part, and remanded with directions.

DAVIS, C.J., and SLEET, J., concur.


author: LAGOA, J.

text:
    Kook C. DO, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee.
    No. 3D12-1655.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2014.
    Rehearing Denied April 2, 2014.

      Montes & Associates Law Firm, P.A., and Juan C. Montes, Hialeah, for appellant.
    Clark, Robb, Mason, Coulombe, Busch-man & Charbonnet and James K. Clark, Miami, and Rafael T. De La Grana, for appellee.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   LAGOA, J.

The Appellant, Kook C. Do (“Do”), appeals from an order denying his renewed motion for attorney’s fees and costs. For the following reasons, we affirm in part and reverse in part.

I. FACTUAL AND PROCEDURAL HISTORY

On May 21, 2007, Officer Curtis Stone, a law enforcement park ranger for the U.S. Fish and Wildlife Services, discovered Do’s leased silver Audi A8 partially submerged in a canal in a restricted area of the Loxa-hatchee National Wildlife Refuge. Officer Stone observed two men, Marcos Franca and Douglas Capisch, at the scene. Officer Stone, along with Officer Biagiotti from the Palm Beach County Sheriffs Office, detained both men and questioned them about the partially submerged Audi. Because the vehicle had not been reported missing, Franca and Capisch were charged with illegal dumping.

Do, the owner of the Audi, reported the theft of his vehicle to his auto insurer, the Appellee, GEICO General Insurance Company (“GEICO”). Do submitted a claim under his policy, which GEICO did not pay.

On October 23, 2007, Do filed a Complaint against GEICO for breach of contract. In its answer, GEICO alleged that coverage was not afforded under the policy because the loss of the Audi was not “accidental” and that Do was complicit in the theft of his own vehicle.

On September 24, 2008, GEICO made a payment of $44,242.18 to the vehicle lien-holder named in Do’s policy, Audi Bank USA. A representative for GEICO testified in a deposition that the payment was made under the policy, and represented the pre-loss value of the Audi, plus sales tax, minus Do’s policy deductible. Upon learning of GEICO’s payment, Do filed a motion for attorney’s fees and costs arguing that, pursuant to Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217 (Fla.1983), the payment made by GEICO to the lien-holder was the functional equivalent of a confession of judgment, and that Do therefore was entitled to attorney’s fees and costs under section 627.428, Florida Statutes (2008).

Two months later, the trial court permitted GEICO to file an Amended Answer and Counterclaims to Do’s Complaint, asserting for the first time the following five counterclaims against Do: (1) civil conspiracy; (2) unjust enrichment; (3) fraudulent misrepresentation; (4) fraud in the inducement; and (5) civil RICO violations.

The trial court subsequently held a hearing on Do’s motion for attorney’s fees and costs, and denied the motion. Do appealed the denial to this Court, and GEICO filed a motion to dismiss the appeal as premature, as its counterclaims remained pending below. On February 22, 2010, this Court dismissed Do’s appeal for lack of jurisdiction.

On June 13, 2011, GEICO filed before the trial court a motion to dismiss the case for lack of prosecution because there had been no record activity for one year. On June 21, 2011, Do also filed a motion to dismiss for lack of prosecution, agreeing that the case should be dismissed because there had been no record activity on the only remaining claims — GEICO’s counterclaims. The trial court subsequently entered an order granting both motions on July 13, 2011.

On July 15, 2011, Do filed a renewed motion for attorney’s fees and costs, asserting that under section 627.428 he was entitled to fees for prosecuting his claim, and for defending the now dismissed counterclaims. The trial court denied the renewed motion, and this appeal ensued.

II. STANDARD OF REVIEW

The proper standard of review for a lower court’s ruling on a party’s entitlement to an award of attorney’s fees pursuant to section 627.428, is de novo. See Jerkins v. USF & G Specialty Ins. Co., 982 So.2d 15 (Fla. 5th DCA 2008).

III. ANALYSIS

“The issue of awarding attorney’s fees under section 627.428, Florida Statutes, has been litigated and is now well settled in the State of Florida.” Avila v. Latin Am. Prop. & Cas. Ins. Co., 548 So.2d 894, 894 (Fla. 3d DCA 1989). Section 627.428 provides, in relevant part:

(1) Upon rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

§ 627.428(1), Fla. Stat. (2008).

“Section 627.428 was intended ‘to discourage the contesting of valid claims against insurance companies and to reimburse successful insureds for their attorney’s fees when they are compelled to defend or sue to enforce their insurance contracts.’ ” Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027, 1029-30 (Fla. 5th DCA 2007) (quoting Ins. Co. of N. Am. v. Lexow, 602 So.2d 528, 531 (Fla.1992)). To that end, the Florida Supreme Court held in Wollard v. Lloyd’s & Cos. of Lloyd's, 439 So.2d 217, 218 (Fla.1983), that, although the statute requires the “rendition of a judgment” in favor of the insured, where an insurer pays the policy proceeds after a suit has been filed but before a judgment has been rendered, “the payment of the claim is, indeed, the functional equivalent of a confession of judgment or a verdict in favor of the insured.” Id. (emphasis added); accord Augustin v. Health Options of S. Fla., Inc., 580 So.2d 314, 315 (Fla. 3d DCA 1991); Amador v. Latin Am. Prop. & Cas. Ins. Co., 552 So.2d 1132,1133 (Fla. 3d DCA 1989); Avila, 548 So.2d at 894-95; Fortune Ins. Co. v. Brito, 522 So.2d 1028,1029 (Fla. 3d DCA 1988).

As a result, when an insurer voluntarily pays the disputed loss after suit is filed, “ ‘[section 627.428] must be construed to authorize the award of an attorney’s fee to an insured ... even though technically no judgment for the loss claimed is thereafter entered favorable to the insured.’ ” Wollard, 439 So.2d at 218 (quoting Cincinati Ins. Co. v. Palmer, 297 So.2d 96, 99 (Fla. 4th DCA 1974)); see also Ajmechet v. United Auto. Ins. Co., 790 So.2d 575, 576 (Fla. 3d DCA 2001) (holding that the insured was entitled to fees under section 627.428 “[b]ecause the payment was obviously effected by the law suit”).

Because section 627.428 was intended to discourage litigation and encourage prompt settlement, the Florida Supreme Court in Wollard refused to “[r]equir[e] the plaintiff to continue litigation in spite of an acceptable offer of settlement merely to avoid having to offset attorney’s fees against compensation for the loss.” 439 So.2d at 218. Thus, when insureds are compelled to sue in order to enforce their insurance contracts, insurers cannot escape liability for attorney’s fees under section 627.428 “simply by paying the policy proceeds after suit is filed but before a judgment is actually entered because to so construe the statute would do violence to its purpose, which is to discourage litigation and encourage prompt disposition of valid insurance claims without litigation.” Id. (quoting Gibson v. Walker, 380 So.2d 531, 533 (Fla. 5th DCA 1980)).

To avoid this, GEICO argues that the payment was not a confession of judgment, but rather, represented the “purchase price” it paid to the lienholder in order to preserve the Audi for evidence in its counterclaims. We find this argument without merit.

First, GEICO’s payment to the vehicle lienholder was made on September 24, 2008, after litigation was initiated but before GEICO asserted its counterclaims against Do. In fact, GEICO did not file its counterclaims until two months after Do filed his motion for attorney’s fees and costs based on GEICO’s alleged confession of judgment. Second, we question how the counterclaims asserted by GEICO would require the Audi as physical evidence, especially since GEICO’s representative also testified that prior to “purchasing” the Audi to support its counterclaims, it tried to return the car to the dealership, which would not take it.

Additionally, even if this Court were persuaded by GEICO’s argument that the $44,262.18 payment was to “purchase” the Audi, there is no requirement that an insurer must intend to confess judgment in order for it to occur — the sole fact that the claim was paid, without more, constitutes a settlement or judgment within the meaning of section 627.428. See Avila, 548 So.2d at 895.

In Avila, this Court was asked to determine whether there had been a confession of judgment in an action where an insurer allegedly made payment of a claim prior to the action being dismissed. In reversing the denial of attorney’s fees to the insured, this Court indicated that the analysis of the issue was simple: “[ejither the check was issued or it was not.” 548 So.2d at 895. This Court remanded the action for findings as to whether a check was issued by the insurer before the dismissal, emphasizing, “[i]f so, then the payment constituted a settlement, and attorney’s fees are mandatory.” Id. Thus, GEICO’s argument regarding its contended purpose for making the $44,262.18 payment is without merit.

Moreover, GEICO’s payment to the lien-holder was in accordance with the terms of the policy’s loss payable endorsement, which provides that any claim under thé physical damage coverages may be settled by separate payment to the lienholder. This fact was affirmed by a representative for GEICO, who testified in a deposition that the payment was made to the lien-holder as an additional insured under the policy. The representative further clarified that the amount paid, $44,262.18, represented the cash value of the Audi, plus tax, minus Do’s deductible under the policy. Accordingly, we conclude that GEICO confessed judgment when it voluntarily paid the vehicle lienholder under the policy after Do brought suit and that this payment entitled Do to attorney’s fees under section 627.428.

Lastly, Do also argues that section 627.428 entitles him to attorney’s fees for time spent defending GEICO’s counterclaims, which were filed after it paid the lienholder. Although Do is entitled to attorney’s fees under section 627.428 for time spent prosecuting his suit, Do’s claim for fees to include work related to GEI-CO’s counterclaims is without merit. Section 627.428 requires an insurer to pay attorney’s fees only upon rendition of a “judgment or decree” in favor of the insured. Here, the trial court on July 13, 2011, dismissed the case for lack of prosecution. Although Wollard requires GEI-CO’s earlier payment to be treated as the functional equivalent of a confession of judgment in Do’s favor, the trial court’s later dismissal for lack of prosecution was not a determination on the merits. See JB Inti, Inc. v. Mega Flight, Inc., 840 So.2d 1147, 1150 (Fla. 5th DCA 2003); Sacks v. Rickles, 155 So.2d 400, 401 (Fla. 3d DCA 1963). Because the order of dismissal was not a judgment in favor of the insured, or, under the circumstances of this case, its functional equivalent, we affirm the trial court’s order denying Do’s motion for fees and costs with respect to the counterclaims. See Guarantee Ins. Co. v. Worker’s Temporary Staffing, Inc., 61 So.3d 1233,1235 (Fla. 5th DCA 2011) (concluding that insurer’s voluntary dismissal without prejudice was not concession on the merits and therefore not a judgment or functional equivalent of a confession of judgment under section 627.428); O.A.G. Corp. v. Britanico Underwriters, Inc., 707 So.2d 785, 787 (Fla. 3d DCA 1998), abrogated on other grounds by Caufield v. Cantele, 837 So.2d 371 (Fla.2002) (holding that insurer’s voluntary dismissal did not constitute an adjudication on the merits and therefore was not a judgment or the functional equivalent of a confession of judgment under section 627.428).

IV. CONCLUSION

Because GEICO’s payment of the claim to the vehicle lienholder after Do filed suit against it was the functional equivalent of a confession of judgment in favor of Do, the trial court erred in denying an award of attorney’s fees to Do for prosecuting his suit pursuant to section 627.428.

Do, however, is not entitled to additional fees for time spent defending GEICO’s counterclaims because the order granting the motions to dismiss for failure to prosecute was not a judgment, or the functional equivalent of a judgment, in Do’s favor. The order on appeal is therefore affirmed in part, reversed in part and remanded to the trial court for determination of the amount of the fees.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . Do alleged in his complaint that he reported his Audi stolen on May 19, 2007 — two days before the car was recovered on May 21. GEICO, however, claims that Do reported the Audi missing on May 21, 2007.

      . The policy contains a loss payable endorsement that provides that any claim under the physical damage coverages of the policy "will be paid jointly to the insured and the Lien-holder,” and that GEICO may settle a claim at its option by separate payment to the insured and the lienholder.

      . A dismissal for lack of prosecution operates to dismiss the entire action, and not isolated claims or counterclaims. Leon v. Old Republic Ins. Co., 561 So.2d 1304 (Fla. 3d DCA 1990). Here, however, no part of Do's case remained pending after GEICO made payment. As Do argued in his motion to dismiss for lack of prosecution, after GEICO paid the lienholder, there remained nothing left for Do to prosecute on his claim other than the assessment of fees and costs against GEICO. GEICO, however, contested Do's entitlement to fees under section 627.428, and then filed several counterclaims against Do. The trial court denied Do’s motion for fees pending resolution of the counterclaims. When GEI-CO failed to take any action, Do moved to dismiss for lack of prosecution.


author: WELLS, Judge.

text:
    GULLIVER SCHOOLS, INC., a Florida corporation, and School Management Systems, Inc., a Florida corporation, Appellants, v. Patrick SNAY, Appellee.
    No. 3D13-1952.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2014.

      Cole, Scott & Kissane, Scott A. Cole and Kristen A. Tajak, Miami, for appellants.
    Kopelowitz Ostrow Ferguson Weisel-berg Keechl, Jonathan M. Streisfield, David L. Ferguson and Scott J. Weisel-berg, Fort Lauderdale, for appellee.
    Before SHEPHERD, C.J., and WELLS and SCALES, JJ.
   WELLS, Judge.

Gulliver Schools, Inc. appeals from a trial court order granting plaintiff Patrick Snay’s motion to compel enforcement of settlement agreement. The school maintains Snay is precluded from enforcing the agreement because he violated a material term, the non-disclosure clause, when he disclosed to his daughter that his case against Gulliver was settled and he was happy with the result. We agree with the school and reverse.

When Gulliver did not renew Snay’s 2010-2011 contract as the school’s headmaster, Snay filed a two count complaint asserting causes of action for age discrimination and retaliation under the Florida Civil Rights Act. On November 3, 2011, the parties executed a general release and a settlement agreement for full and final settlement of Snay’s claims, with the school to pay $10,000 in back pay to Snay with “Check # 1”; $80,000 to Snay as a “1099” with “Check # 2”; and $60,000 to Snay’s attorneys with “Check # 3.”

Central to this agreement was a detailed confidentiality provision, which provided that the existence and terms of the agreement between Snay and the school were to be kept strictly confidential and that should Snay or his wife breach the confidentiality provision, a portion of the settlement proceeds (the $80,000) would be disgorged:

13. Confidentiality ... [T]he plaintiff shall not either directly or indirectly, disclose, discuss or communicate to any entity or person, except his attorneys or other professional advisors or spouse any information whatsoever regarding the existence or terms of this Agreement ... A breach .. .will result in disgorgement of the Plaintiffs portion of the settlement Payments.

Only four days after the agreement was signed, on November 7, 2011, Gulliver notified Snay that he had breached the agreement based on the Facebook posting of Snay’s college-age daughter, wherein she stated:

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

This Facebook comment went out to approximately 1200 of the daughter’s Face-book friends, many of whom were either current or past Gulliver students.

Although the settlement agreement expressly accorded Snay the unilateral right to revoke the agreement within seven days of its execution (that is, by November 10), Snay took no action to revoke the agreement despite Gulliver’s notification of breach.

On November 15, 2011, Gulliver sent a letter to Sna/s counsel, stating that it was tendering the attorney’s fees portion of the parties’ agreement but was not going to tender Sna/s portion because he had breached the confidentiality provision. That letter included a Joint Stipulation for Dismissal which reconfirmed in part that “the parties have settled this action,” and Snay signed off on it and returned it to Gulliver. The action was dismissed with a reservation of jurisdiction for enforcement of the settlement agreement.

On June 9, 2012, Snay filed his motion to enforce the settlement agreement, arguing that his statement to his daughter and her comment on Facebook did not constitute a breach. After giving Gulliver an opportunity to take the depositions of the Snays and their daughter, the court below conducted a hearing at which the parties agreed to rely on deposition testimony for the purposes of determining whether there had been a breach of the confidentiality provisions of the settlement agreement. Following that hearing, the court below entered an order finding that neither Snay’s comments to his daughter nor his daughter’s Facebook comments constituted a breach of the confidentiality agreement. We disagree and reverse.

A settlement agreement must generally “be interpreted like any other contract. That is, absent any evidence that the parties intended to endow a special meaning in the terms used in the agreement, the unambiguous language is to be given a realistic interpretation based on the plain, everyday meaning conveyed by the words.” McIlmoil v. McIlmoil, 784 So.2d 557, 561 (Fla. 1st DCA 2001).

It is axiomatic that the clear and unambiguous words of a contract are the best evidence of the intent of the parties. See Murry v. Zynyx Mktg. Communications, Inc., 774 So.2d 714 (Fla. 3d DCA 2000). Where contracts are clear and unambiguous, they should be construed as written, and the court can give them no other meaning. See Institutional & Supermarket Equip., Inc. v. C & S Refrigeration, Inc., 609 So.2d 66, 68 (Fla. 4th DCA 1992). In construing a contract, the legal effect of its provisions should be determined from the words of the entire contract.

Khosrow Maleki P.A. v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628, 631 (Fla. 4th DCA 2000); see Walgreen Co. v. Habitat Dev. Corp., 655 So.2d 164, 165 (Fla. 3d DCA 1995) (“When a contract is clear and unambiguous, the court is not at liberty to give the contract ‘any meaning beyond that expressed.’ ” (quoting Bay Mgmt. Inc. v. Beau Monde, Inc., 366 So.2d 788, 791 (Fla. 2d DCA 1978))); see e.g. Spring Lake NC, LLC v. Figueroa, 104 So.3d 1211,1214 (Fla. 2d DCA 2012) (“If a contract provision is clear and unambiguous, a court may not consider extrinsic or parol evidence to change the plain meaning set forth in the contract.” (quoting SCG Harbourwood, LLC v. Hany an, 93 So.3d 1197, 1200 (Fla. 2d DCA 2012))).

In this case, the plain, unambiguous meaning of paragraph 13 of the agreement between Snay and the school is that neither Snay nor his wife would “either directly or indirectly ” disclose to anyone (other than their lawyers or other professionals) “any information” regarding the existence or the terms of the parties’ agreement.

Because Snay’s deposition testimony that “[m]y conversation with my daughter was that it was settled and we were happy with the results,” establishes a breach of this provision, the court below should have denied his motion for enforcement of the agreement. The fact that Snay testified that he knew he needed to tell his daughter something did not excuse this breach. There is no evidence that he made this need known to the school or to his or its attorneys so that the parties might hammer out a mutually acceptable course of action in the agreement. Rather, before the ink was dry on the agreement, and notwithstanding the clear language of section 13 mandating confidentiality, Snay violated the agreement by doing exactly what he had promised not to do. His daughter then did precisely what the confidentiality agreement was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school.

Based on the clear and unambiguous language of the parties’ agreement and Snay’s testimony confirming his breach of its terms, we reverse the order entered below granting the Snays’ motion to enforce the agreement.

Reversed.

      . Our standard of review is de novo. Gray v, D &J Indus. Inc., 875 So.2d 683, 683 (Fla. 3d DCA 2004) (“The construction of a contract is a question of law for the courts to determine where the language used in the written contract is clear, unambiguous, and susceptible of only one interpretation.”); see also Abel Homes at Naranja Villas, LLC v. Hernandez, 960 So.2d 891, 893 (Fla. 3d DCA 2007) (same).

      . Snay’s position was that he never told the daughter that he had "won" the case and the daughter did not go to Europe that summer, nor had she planned to do so. This, however, does not change our analysis.

      . It later tendered the back wages ($10,000) portion of the agreement.

      . The significance of this provision is evidenced by the fact that Snay’s entitlement to a significant sum of money is expressly conditioned on his compliance with this provision. It is also highlighted by the ramifications visited on Gulliver as a consequence of Snay’s breach/disclosure when his daughter communicated to 1200 people, many associated with Gulliver, that Snay had been justified in his discrimination and retaliation claims.

      . According to Snay he knew the litigation was important to his daughter and he knew he would have to tell her something about its resolution. So moments after signing the agreement, he had a conversation with his wife, and they agreed to inform their daughter that the case was settled and they were happy with the result.
      Snay explained:
      What happened is that after settlement my wife and I went in the parking lot, and we had to make some decisions on what we were going to tell my daughter. Because it's very important to understand that she was an intricate part of what was happening. She was retaliated against at Gulliver. So she knew we were going to some sort of mediation. She was very concerned about it. Because of what happened at Gulliver, she had quite a few psychological scars which forced me to put her into therapy.
      So there was a period of time that there was an unresolved enclosure for my wife and me. It was very important with her. We understood the confidentiality. So we knew what the restrictions were, yet we needed to tell her something.


author: MORRIS, Judge.

text:
    Ronald L. FOX, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3609.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2014.
    Ronald L. Fox, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and, Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Ronald L. Fox appeals the postconviction court’s denial of his motion for post-conviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court’s order.

Mr. Fox pleaded guilty to failing to register as a sex offender on May 4, 2012, and was sentenced to two years, ten months, and twenty-nine days in prison. Thereafter, Mr. Fox filed a rule 3.850 motion, claiming that his plea was unintelligently entered because the Michigan conviction upon which his failure to register as a sexual offender charge was based is not a conviction that required him to register as a sexual offender under section 943.0435, Florida Statutes (2011), and that he would not have pleaded guilty if he had known he was not required to register.

Mr. Fox is a “sexual offender” under section 943.0435(l)(a)(l)(b), because he “has been designated as a ... sexual offender ... in another state or jurisdiction and was, as a result of such designation, subjected to registration ... or would be if the person were a resident of that state or jurisdiction.” On July 25, 1997, Mr. Fox pleaded guilty to violating section 750.520(e), Michigan Compiled Laws (1995), Attempted Criminal Sexual Con-duet-4th Degree, and was sentenced to twenty-four months of probation. Michigan’s Sex Offenders Registration Act requires individuals convicted of a listed offense after October 1, 1995, to register as a convicted sex offender. Mich. Comp. Laws § 28.723 (1995). Section 28.722(d)(iv) defines listed offense as a “violation of section 520b, 520c, 520d, 520e, or 520g of Act No. 328 of the Public Acts of 1931, being sections 750.520b, 750.520c, 750.520d, 750.520e, and 750.520g of the Michigan Compiled Laws” or an attempt to commit one of the described offenses.

(Emphasis added.) Mr. Fox was required to register for twenty-five years under Michigan’s Sex Offenders Registration Act, and he would be required to register if he lived there today. See § 28.725(3). Thus, Mr. Fox is required to register as a sexual offender under section 943.0435(l)(a)(l)(b), Florida Statutes (2011). See Moore v. State, 992 So.2d 862, 864 (Fla. 5th DCA 2008) (holding proof that a defendant was required to register as a sex offender in Michigan satisfied the sexual offender element of section 943.0435).

Because Mr. Fox is required to register as a sexual offender under section 943.0435(l)(a)(l)(b), he failed to establish that his guilty plea was unknowingly entered.

Affirmed.

CASANUEVA and SILBERMAN, JJ„ Concur.


author: WARNER, J.

text:
    NORTHWOODS SPORTS MEDICINE AND PHYSICAL REHABILITATION, INC., (a/a/o Suzanne Cabrera), and Wellness Associates of Florida, Inc., (a/a/o Daniel North), Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and USAA Casualty Insurance Company, Appellees.
    Nos. 4D11-1556, 4D11-3796.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2014.
    Rehearing En Banc Denied June 4, 2014.

      Joseph R. Littman, Harley N. Kane, Michael E. Greenspan and Charles J. Kane of The Greenspan Law Firm, P.A., Boca Raton, for appellants.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and David M. Bender of Matt Heilman, P.A., Plantation, for appel-lee State Farm Mutual Automobile Insurance Company.
    Douglas H. Stein of Seipp & Flick, LLP, Miami, for appellee USAA Casualty Insurance Company.
   WARNER, J.

In two cases, we initially accepted appeals from the county court certifying various questions “of great public importance” involving medical providers seeking PIP benefits from insurance companies. These were consolidated because three of the four questions were the same in both suits. After having considered both appeals, we conclude that the appeal in Northwoods Sports Medicine and Physical Rehabilitation, Inc. v. State Farm Mutual Automobile Insurance Co. does not raise any questions of great public importance, because the trial court did not rule on two of the issues raised and the third issue has already been consistently decided by the appellate courts of this state. As to the claims in Wellness Association of Florida, Inc. v. USAA Casualty Insurance Co., we accept jurisdiction of that appeal and affirm the judgment of the trial court holding that the medical provider is precluded from collecting from the insurer because of the exhaustion of PIP benefits provided by the insurer.

Facts

In both cases, an insured of State Farm and an insured of USAA were injured in different accidents. Both insureds needed medical treatment as a result of injuries sustained. State Farm’s insured received medical treatment from Northwoods in September of 2008 and assigned the PIP benefits under her policy, which had an effective date of January 1, 2008, to North-woods. Northwoods billed State Farm, but State Farm reduced the bills to 80% of 200% of the Medicare fee schedule pursuant to section 627.736(5)(a)2., Florida Statutes (2008). Northwoods made a pre-suit demand to State Farm for the unpaid portion of the bill, which State Farm found deficient for failing to specify the exact amount claimed to be due and owing.

Meanwhile, State Farm continued to pay other medical providers who had also been assigned PIP benefits by the insured. Pri- or to the filing of Northwoods’s suit for breach of contract against State Farm, the insured’s PIP benefits were exhausted. After Northwoods filed suit to collect the remainder of its bill, State Farm moved for summary judgment based on several grounds, including exhaustion of benefits. Before the motion for summary judgment was heard, Northwoods amended its complaint to allege that State Farm had reduced its bills improperly and in bad faith by relying on a fee schedule not permitted by law.

Following the hearing on the motion for summary judgment, the trial court entered a one-line order granting the motion based on exhaustion of benefits. In a later final judgment, the court found:

In this matter no determination has been made regarding the legal issue of whether [State Farm] was permitted to apply a fee limitation under F.S. § 627.736(5)(a)(2)(f). This Court’s entry of final summary judgment is premised solely on [State Farm]’s exhaustion of benefits defense.

At the behest of Northwoods, the county court certified three questions:

1. DID SIMON V. PROGRESSIVE EXPRESS INS. CO., 904 So.2d 449, 450 (Fla. 4TH DCA 2005) ABROGATE THE ENGLISH RULE OF PRIORITIES AS ANNOUNCED BY THE FLORIDA SUPREME COURT IN BOULEVARD!]NATIONAL BANK OF MIAMI V. AIR METAL INDUSTRIES, INC., 176 So.2d 94 (Fla.1965) AND APPLIED TO PIP CASES IN STATE FARM FIRE AND CASUALTY CO. V RAY, 556 So.2d 811 (Fla. 5TH DCA 1990)?
2. DOES AN INSURER’S RELIANCE ON AN INTERPRETATION OF THE NO-FAULT STATUTE WHICH IS LATER DETERMINED TO BE AN INCORRECT INTERPRETATION CONSTITUTE THE “REASONABLE PROOF” REFERENCED IN THAT PORTION OF F.S. SECTION 627.736(4)(b) WHICH STATES THAT “HOWEVER, NOTWITHSTANDING THE FACT THAT WRITTEN NOTICE HAS BEEN FURNISHED TO THE INSURER, ANY PAYMENT SHALL NOT BE DEEMED OVERDUE WHEN THE INSURER HAS REASONABLE PROOF TO ESTABLISH THAT THE INSURER IS NOT RESPONSIBLE FOR THE PAYMENT”?
3.IN A PERSONAL INJURY PROTECTION MATTER, MAY A TRIAL COURT ENTER FINAL SUMMARY JUDGMENT IN FAVOR OF AN INSURER ON AN EXHAUSTION OF BENEFITS DEFENSE WHEN PLAINTIFF HAS ALLEGED IN ITS COMPLAINT THAT THE INSURER “HAS IN BAD FAITH, MANIPULATED OR OTHERWISE ACTED IMPROPERLY IN REDUCING THE PLAINTIFF’S BILLS”?

In the Wellness case, USAA’s insured received medical treatment from Wellness in 2008 and assigned the PIP benefits under his policy, which was in effect through March 2008, to Wellness. Wellness submitted a claim to USAA for PIP benefits, but USAA failed to pay the full claim within thirty days. Instead, it reduced the claims using the payment methodology of section 627.736(5)(a)2., Florida Statutes (2008). In 2010, Wellness filed a complaint for damages against USAA and served the insurance company. At the time suit was filed, less than $14 in unpaid PIP benefits remained. While the lawsuit was pending, USAA paid other medical providers that amount, exhausting PIP benefits. USAA thereafter moved for summary judgment based on exhaustion of benefits. Wellness amended its complaint to add allegations that USAA had reduced Wellness’s bills in bad faith by using a fee schedule not permitted by the no-fault law.

The trial court entered summary judgment in favor of USAA based upon exhaustion of benefits. In its final judgment, relying on Simon v. Progressive Express Insurance Co., 904 So.2d 449 (Fla. 4th DCA 2005), the court rejected Wellness’s argument that the PIP statute mandated a “first in/first out” order of payment, meaning that later-submitted claims could not exhaust benefits so as to prevent payment of an earlier submitted claim. The court also rejected Wellness’s argument that summary judgment was inappropriate where it had alleged bad faith, finding neither the pleadings nor any evidence presented supported a bad faith claim. Finally, the trial court acknowledged Kings-way Amigo Insurance Co. v. Ocean Health, Inc., 68 So.3d 68 (Fla. 4th DCA 2011), which held that an insurance company must give notice in its policy prior to using the payment methodology in section 627.736(5)(a)2., but noted that Kingsway had not been decided at the time USAA made its payments to Wellness and thus was not controlling. It cited two circuit court cases which both held that an insurer could not be acting in bad faith when it relies on its interpretation of the law at the time, in absence of binding authority to the contrary. See Virtual Imaging Servs., Inc. v. United Servs. Auto. Ass’n, 18 Fla. L. Weekly Supp. 491a (Fla. 11th Cir.Ct. Feb. 2, 2011); Pembroke Pines MRI, Inc. v. USAA Cas. Ins. Co., 17 Fla. L. Weekly Supp. 479a (Fla. 17th Cir.Ct. Mar. 29, 2010). The court later entered an agreed order certifying the same questions as in the Northwoods case, plus an additional question:

4. IN AN ACTION BY AN ASSIGNOR FOR NO FAULT INSURANCE BENEFITS FOUNDED ON A CLAIM FOR BREACH OF CONTRACT, DOES A POST-SUIT EXHAUSTION OF BENEFITS ABSOLVE THE INSURER FROM ANY RESPONSIBILITY TO PAY AN OTHERWISE VALID CLAIM WHERE THE EXHAUSTION OCCURRED AFTER THE INSURER: (A) PAID AN AMOUNT THAT THE PROVIDER CLAIMS IS LESS THAN REQUIRED BY THE CONTRACT; (B) RECEIVED A PRE-SUIT DEMAND LETTER NOTIFYING THE INSURER OF THE MEDICAL PROVIDER’S DISPUTE; AND (C) WAS SERVED WITH THE FILED COMPLAINT?

In the order certifying the questions, the parties agreed that the issues should be certified to prevent inconsistent rulings among the various county courts in the state.

Declining Jurisdiction in Northwoods

Although we initially accepted jurisdiction of the appeal in Northwoods, that was in large part based upon a memo on jurisdiction filed in Wellness. Upon review of the judgment in Northwoods, however, it is apparent that we should not have accepted jurisdiction because the North-woods case does not appear to meet any of the criteria for the exercise of discretionary jurisdiction under Florida Rule of Appellate Procedure 9.030(b)(4)(A).

There is little guidance as to when the district court should accept jurisdiction over a final order certified by the county court to be of great public importance. In Star Casualty v. U.S.A. Diagnostics, Inc., 855 So.2d 251 (Fla. 4th DCA 2003), we explained that the district court of appeal had absolute discretion as to whether to consider such a case, which bypasses an appeal to the circuit court. Id. at 252. In Star, we also initially took jurisdiction, only to discharge it after full review of the case. Id. at 251-52. This is similar to cases in which the supreme court initially accepts discretionary jurisdiction, only to discharge it later as improvidently granted. See, e.g., Brantley v. State, 115 So.3d 360, 361 (Fla.2013).

In this case, the first certified question asks whether Simon abrogated the English rule of priorities in assign-merits. Simon addressed the English rule and rejected its application to PIP claims, due to the statutory requirements placed on the insurer to make expeditious payment on all PIP claims. Simon, 904 So.2d at 449-50. Simon was followed on this issue in Progressive American Insurance Co. v. Stand-Up MRI of Orlando, 990 So.2d 3, 5 (Fla. 5th DCA 2008), and Sheldon v. United Services Automobile Ass’n, 55 So.3d 593, 595-96 (Fla. 1st DCA 2010), all of which predated the final order in this case. Where the district courts have already ruled on the issue and uniformly have answered the question, this does not pose a question of great public importance.

Another principle we consider in deciding whether to exercise our discretionary jurisdiction over a county court appeal is that a “prior judicial determination of the certified question is necessary before an appellate court may properly be called upon to answer it.” Inv. & Income Realty, Inc. v. Bentley, 480 So.2d 219, 221 (Fla. 5th DCA 1985). In other words, where the county court has not ruled on the issue, the appellate court should not rule on it in the first instance. Otherwise, we would be issuing an advisory opinion, something we do not have jurisdiction to do. In the Northwoods case, the county court ruled- solely on the exhaustion of benefits issue. It expressly did not rule nor make any judicial determination on the issues raised in the other two certified questions. Therefore, this court should decline to rule in the first instance on those questions.

For these reasons, we discharge our jurisdiction in Northwoods Sports Medicine and Physical Rehabilitation, Inc. v. State Farm Mutual Automobile Insurance Co. and transfer the appeal to the circuit court of the Fifteenth Judicial Circuit.

Wellness

Wellness raises all of the same questions as Northwoods and adds another, premised on the fact that USAA did not finally exhaust the PIP benefits until after Wellness had filed suit and served USAA. The last question does not appear to have been addressed by other district courts, and some circuit court authority suggests that trial courts may be rendering inconsistent results. Therefore, we do exercise our jurisdiction in this case, although we will explain why we will not answer all of the questions posed.

1. DID SIMON V. PROGRESSIVE EXPRESS INS. CO., 904 So.2d 449, 450 (Fla. 4TH DCA 2005) ABROGATE THE ENGLISH RULE OF PRIORITIES AS ANNOUNCED BY THE FLORIDA SUPREME COURT IN BOULEVARD! JNATIONAL BANK OF MIAMI V. AIR METAL INDUSTRIES, INC., 176 So.2d 94 (Fla.1965) AND APPLIED TO PIP CASES IN STATE FARM FIRE AND CASUALTY CO. V. RAY, 556 So.2d 811 (Fla. 5TH DCA 1990)?

We have already noted that the district courts have consistently held that the English rule of priorities, which gives priority to an assignee first giving notice to the creditor, does not apply to PIP payments which are governed by statute. In Simon, we noted that otherwise an insurance company would have to set up a reserve for each bill submitted, which

would result in unreasonable exposure of the insurance company and would be to the detriment of the insured and other providers with properly submitted claims. Under such a theory, all potential payments to a service provider that were denied, or were subject to a reduction, would have to be held in reserve until the statute of limitations period expired or a suit was filed and concluded. This would delay and reduce availability of funds for the payment of claims to other providers and would be inconsistent with the PIP statute’s “prompt pay” provisions. See §§ 627.613, and 627.662(7), Fla. Stat. (provision established to expedite payment to service providers). It is the obligation of insurance companies to attempt to settle as many claims as possible. Farinas v. Florida Farm Bureau General Insurance Co., 850 So.2d 555, 560 (Fla. 4th DCA 2003). It is also a prerogative of insurance companies to pay, reduce, or deny claims. Id.

Simon, 904 So.2d at 450. This court thus affirmed judgment for the insurer based on exhaustion of benefits. Id. Stand-Up MRI, 990 So.2d at 5, followed Simon, as did Sheldon, 55 So.3d at 595-96 (applying Simon and Stand-Up MRI and concluding that, after exhaustion of benefits, provider could not seek interest or attorney’s fees under the PIP statute because benefits were never overdue). In sum, Simon did not “abrogate” the English Rule adopted by the supreme court in Boulevard National Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla.1965). Instead Simon and Stand-Up MRI explain why the rule has limited applicability in the PIP context. Therefore, we continue to adhere to Simon and its progeny.

2. DOES AN INSURER’S RELIANCE ON AN INTERPRETATION OF THE NO-FAULT STATUTE WHICH IS LATER DETERMINED TO BE AN INCORRECT INTERPRETATION CONSTITUTE “REASONABLE PROOF” REFERENCED IN THAT PORTION OF F.S. SECTION 627.736(4)(b) WHICH STATES THAT “HOWEVER, NOTWITHSTANDING THE FACT THAT WRITTEN NOTICE HAS BEEN FURNISHED TO THE INSURER, ANY PAYMENT SHALL NOT BE DEEMED OVERDUE WHEN THE INSURER HAS REASONABLE PROOF TO ESTABLISH THAT THE INSURER IS NOT RESPONSIBLE FOR THE PAYMENT”?

We decline to answer this question, because the trial court did not rule on the issue. See Inv. & Income Realty, 480 So.2d at 221. The trial court simply ruled that the insurer did not automatically violate the PIP statute payment provisions by not paying the full amount of the claimed bill within thirty days. See United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 87 (Fla.2001).

3. IN A PERSONAL INJURY PROTECTION MATTER, MAY A TRIAL COURT ENTER FINAL SUMMARY JUDGMENT IN FAVOR OF AN INSURER ON AN EXHAUSTION OF BENEFITS DEFENSE WHEN PLAINTIFF HAS ALLEGED IN ITS COMPLAINT THAT THE INSURER “HAS IN BAD FAITH, MANIPULATED OR OTHERWISE ACTED IMPROPERLY IN REDUCING THE PLAINTIFF’S BILLS”?

Despite requesting the trial court to certify this as a question of great public importance, Wellness made no argument in its appellate brief on this issue. Therefore, it has abandoned that issue. See Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983) (“This Court will not depart from its dispassionate role and become an advocate by second guessing counsel and advancing for [counsel] theories and defenses which counsel either intentionally' or unintentionally has chosen not to mention. It is the duty of counsel to prepare appellate briefs so as to acquaint the Court with the material facts, the points of law involved, and the legal arguments supporting the positions of the respective parties.”).

4. IN AN ACTION BY AN ASSIGNOR FOR NO FAULT INSURANCE BENEFITS FOUNDED ON A CLAIM FOR BREACH OF CONTRACT, DOES A POST-SUIT EXHAUSTION OF BENEFITS ABSOLVE THE INSURER FROM ANY RESPONSIBILITY TO PAY AN OTHERWISE VALID CLAIM WHERE THE EXHAUSTION OCCURRED AFTER THE INSURER:
(A) PAID AN AMOUNT THAT THE PROVIDER CLAIMS IS LESS THAN REQUIRED BY THE CONTRACT;
(B) RECEIVED A PRE-SUIT DEMAND LETTER NOTIFYING THE INSURER OF THE MEDICAL PROVIDER’S DISPUTE; AND (C) WAS SERVED WITH THE FILED COMPLAINT?

We answer this question in the affirmative, extending the reasoning of Simon, Stand-Up MRI, and Sheldon.

Simon rejected the “reserve or hold” theory of the medical provider — that, when an insurance company reduces a provider’s claim, it must set up a reserve in case it is later required to pay the full claim. Simon, 904 So.2d at 450. We surmised that such a system would undermine the prompt payment promise of the PIP statute and the insurance company’s obligation to settle as many claims as possible. Id. The Fifth District agreed with us in Stand-Up MRI, and stated:

Holding funds in reserve until the completion of litigation is detrimental to everyone except the provider(s) who is keeping the funds tied up. It subjects the insurer to unreasonable exposure, is detrimental to other providers with properly submitted claims, and detrimental to the insured who is entitled to both prompt treatment and prompt payment for that treatment. Furthermore, it is contrary to the legislative intent to have these bills quickly paid.

Stand-Up MRI, 990 So.2d at 6.

In these cases, as well as in Sheldon> 55 So.3d at 595-96, the insurer had first either rejected or reduced payment on a claim after submission of the provider’s bills. PIP benefits were then exhausted either prior to the medical provider filing suit on the amount it claimed due (Simon ), or prior to service of the complaint on the insurance company (Stand-Up MRI and Sheldon). Here, exhaustion occurred after service of Wellness’s complaint on USAA. Although each court noted the timing of the exhaustion of benefits, none explained why it was important to the court’s analysis. We conclude, however, that where the reasonableness of the provider’s claim is still in dispute, post-suit exhaustion of benefits extinguishes the provider’s right to further payments, as long as exhaustion is prior to the establishment of the amount to which the medical provider is entitled under PIP.

A careful examination of Boulevard reveals why the English Rule adopted in that case does not apply to PIP cases, and why, accordingly, post-suit exhaustion of PIP benefits may bar a provider from collecting an earlier-submitted claim. In Boulevard, a subcontractor assigned its rights to payment from the general contractor first as security for the issuance of a surety bond and later, as security for a loan, to a bank. Boulevard, 176 So.2d at 95-96. It does not appear that the general contractor, which held the payments due, disputed the amounts claimed by the surety or the bank, nor did the general contractor dispute how much it owed to the subcontractor. Id. at 96. It paid the amounts due to the subcontractor to the first assignee which had given it notice of the assignment. Id. The parties stipulated that all of the conditions precedent to the assignment had occurred, namely, default by the subcontractor on the performance of its obligations under the surety agreement and default on repayment of the loan to the bank. Id. at 97. The supreme court thus limited its consideration to the question of which rule to apply: the American Rule, which required payment on the assignment which had occurred first in time, with equitable exceptions, regardless of notice to the debtor of the assignment; or the English Rule, which required payment to the assignee which had first given notice of the assignment to the debtor. Id. at 96-97. The court ruled that Florida follows the English Rule. Id. at 99.

The general contractor, which held the funds which were due to the subcontractor, had no interest in whether the amounts claimed to be due were appropriate and due to the assignees, nor did the general contractor claim that’ the monies were due to it. In other words, it does not appear that in Boulevard there was any dispute between the parties as to the amounts due or the amounts owed. The supreme court therefore adopted the English Rule in a circumstance where there were no factual disputes as to the amounts due.

In contrast, under PIP, disputes commonly arise as to the amount due to the provider assignee, based on the policy language or the PIP statutory provisions. The insurance company has the duty to pay only the reasonable expenses for medically necessary care. See § 627.736(l)(a), Fla. Stat. (2008). A medical provider may charge only a reasonable amount for services provided under section 627.736(5)(a), Florida Statutes (2008). Even the assignment executed by USAA’s insured to Wellness limits the assignment to amounts which would be allowed under PIP and section 627.736, when it states that the assignment is “for services rendered to me covered by Personal Injury Protection (PIP) coverage ... and in accordance with Florida Statutes.” (emphasis added). In other words, in order to activate the right to claim PIP payments under the assignment, the provider’s bills must be compensable under the statute in that they have been determined to be reasonable and necessary.

When the insurance company denies or reduces payment, a dispute arises as to whether the additional amounts are covered by the statute as being either medically necessary or reasonable in amount. Section 627.736(4) sets forth very specific requirements on how the insurance company must treat claims of providers. Even after a claim is denied or reduced, an insurance company may still defend a suit by the provider claiming additional amounts on the grounds that the service was not medically necessary or that the amount was not reasonable. See § 627.736(4)(b), Fla. Stat. (2008); Rodriguez, 808 So.2d at 87-88.

Until the necessity of the services and reasonableness of the charges is settled, their compensability under PIP is not established, and assignment of PIP benefits has not matured. Thus, the English Rule would have application only to those claims which are settled either by insurance company acceptance or by resolution of disputed charges through suit.

We hold that post-suit exhaustion of benefits should be treated no differently than pre-suit exhaustion of benefits, as long as the benefits’ compensability under PIP has not been established. Once the PIP benefits are exhausted through the payment of valid claims, an insurer has no further liability on unresolved, pending claims, absent bad faith in the handling of the claim by the insurance company.

Having answered those questions which we deem to have been preserved for review, we affirm the final judgment of the trial court in Wellness Association of Florida, Inc. v. USAA Casualty Insurance Co.

As to Northwoods Sports Medicine and Physical Rehabilitation, Inc. v. State Farm Mutual Automobile Insurance Co. we discharge our jurisdiction and transfer the appeal to the circuit court of the Fifteenth Judicial Circuit.

CONNER and FORST, JJ., concur.


author: PER CURIAM.

text:
    JOHNS EASTERN COMPANY and Indian River County BCC, Appellants, v. Jerald BELLAMY, Appellee.
    No. 1D13-3613.
    District Court of Appeal of Florida, First District.
    March 12, 2014.
    William H. Rogner and Paul L. Westcott of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellants.
    Stacy J. Ford of Litigation and Appeals Advocacy, PLLC, Saint Cloud, for Appel-lee.
   PER CURIAM.

In this workers’ compensation matter, the Employer/Carrier (E/C) argues the Judge of Compensation Claims (JCC) erred in awarding Claimant, a firefighter/paramedic, benefits for his diagnosed hypertension and premature ventricular contractions. We affirm without further comment the JCC’s finding that Claimant satisfied the prerequisites for the occupational causation presumption afforded firefighters, and certain other employees, set out in section 112.18(l)(a), Florida Statutes (2011). Nevertheless, because it appears the JCC may have relied upon an incorrect standard in determining whether the E/C successfully rebutted the occupational causation presumption, we reverse and remand.

In Punsky v. Clay County Sheriff’s Office, 18 So.3d 577 (Fla. 1st DCA 2009) (en banc), we addressed the very issue presented in this appeal — the burden of persuasion required of an employer who seeks to rebut the presumption afforded by section 112.18. Two circumstances were identified and this Court determined that each required a different level of proof to rebut the presumption. In those circumstances whereby a claimant relies solely on the presumption to support his or her claim, the E/C can rebut the presumption with “competent evidence.” Id. at 579. On the other hand, “when there is evidence supporting the presumption which is accepted as credible by the JCC [then] clear and convincing evidence would be required to be found by the JCC ... to rebut the statutory presumption.” Id. at 584.

Here, because the JCC cited no independent medical evidence in support of occupational causation, the E/C’s burden to rebut the presumption required it produce “competent” evidence. The JCC, however, referenced both burdens of proof, without specifying either as the burden to be met, in finding the presumption was not rebutted.

Because it was not clear whether the JCC erroneously held the E/C to the higher stand of proof, the order is REVERSED, and the matter REMANDED, for application of the appropriate burden of proof.

CLARK, MAKAR, and OSTERHAUS, JJ., concur.