         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                               NOT FINAL UNTIL TIME EXPIRES TO
                                               FILE MOTION FOR REHEARING AND
                                               DISPOSITION THEREOF IF FILED


USAA CASUALTY INSURANCE
COMPANY,

             Petitioner,

 v.                                                  Case No. 5D15-2154

EMERGENCY PHYSICIANS OF
CENTRAL FLORIDA, ETC.,

             Respondent.

________________________________/

Opinion filed June 17, 2016

Petition for Certiorari Review of Decision
from the Circuit Court for Orange County
Acting in its Appellate Capacity.

Douglas H. Stein, of Seipp, Flick & Hosley,
LLP, Coral Gables, for Petitioner.

Chad A. Barr, of Law Office of Chad A. Barr,
P.A., Maitland, for Respondent.


EDWARDS, J.

      Petitioner, USAA Casualty Insurance Company (“USAA”), asks us to determine

whether a confession of judgment occurred when USAA allegedly mailed overdue

Personal Injury Protection (“PIP”) payments before the day suit was filed, which were

received after Respondent, Emergency Physicians of Central Florida, filed suit against

USAA to collect the overdue PIP benefits. USAA has already paid the PIP benefits but
seeks to avoid responsibility for Respondent’s reasonable attorney’s fees and costs. We

deny USAA’s petition for certiorari.

       This court has jurisdiction to review the matter pursuant to Florida Rule of Appellate

Procedure 9.030(b)(2)(B), which provides that district courts of appeal have certiorari

jurisdiction to review “final orders of circuit courts acting in their review capacity.”

“Second-tier certiorari is not a second appeal; it is extraordinarily limited, and narrow in

scope.” Advanced Chiropractic & Rehab. Ctr., Corp. v. United Auto. Ins. Co., 103 So. 3d

866, 869 (Fla. 4th DCA 2012) (citations omitted). “Ordinary legal errors, or application of

the correct law incorrectly under the facts, are not sufficient grounds for a district court to

grant second-tier certiorari.” Id. at 868. Second-tier certiorari review should only be

exercised when “there has been a violation of a clearly established principle of law

resulting in the miscarriage of justice.” Wekiva Springs Reserve Homeowners v. Binns,

61 So. 3d 1190, 1191 (Fla. 5th DCA 2011) (quoting Custer Med. Ctr. v. United Auto. Ins.

Co., 62 So. 3d 1086, 1092 (Fla. 2010)). “The departure from the essential requirements

of the law necessary for granting a writ of certiorari is something more than a simple legal

error.” Custer Med. Ctr., 62 So. 3d at 1092. The exercise of this discretionary jurisdiction

depends on the appellate court's “assessment of the gravity of the error and the adequacy

of other relief.” Id. (quoting Haines City Cmty. Dev. v. Heggs, 650 So. 2d 523, 531 n.14

(Fla. 1995)). USAA does not claim that it was denied procedural due process; therefore,

we will consider only whether the circuit court, acting in its appellate capacity, violated

clearly established principles of law resulting in a miscarriage of justice.

       Respondent submitted a PIP claim for payment to USAA for services it rendered

to USAA’s insured. USAA did not initially pay the claim, nor did it pay the claim within




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thirty days of Respondent’s later statutory demand letter. USAA ultimately paid the

benefits, including statutorily-imposed interest and a penalty, with two separate checks

prepared on two different days.1      Respondent sued USAA in county court seeking

payment for the allegedly past due payment. USAA did not give Respondent advance

notice that it was making these payments; Respondent learned of the payments upon

receipt.

       USAA answered Respondent’s complaint, asserting certain affirmative defenses,

then moved for summary judgment claiming that it fully paid Respondent. USAA filed a

second motion for summary judgment, asserting that Respondent lacked standing to sue

USAA because Respondent arguably received only an assignment of benefits and not a

specific assignment of the insured’s right to pursue legal action. Respondent moved for

entry of judgment on the ground that an insurance company confesses judgment when it

pays the disputed claim or benefits after suit is filed. See Tampa Chiropractic Ctr., Inc. v.

State Farm Mut. Auto. Ins. Co., 141 So. 3d 1256, 1259 (Fla. 5th DCA 2014); Wollard v.

Lloyd's and Cos. of Lloyd's, 439 So. 2d 217, 218 (Fla. 1983). If USAA’s payment

amounted to a confession of judgment, it would have to pay Respondent’s reasonable

attorney’s fees and costs.

       There were three hearings on the parties’ competing motions. At the first hearing,

USAA’s counsel advised that he had recently taken over the file and needed additional

time to prepare. He also asked the court to continue any hearing on Respondent’s motion




       1 Section 627.736(10)(d), Florida Statutes (2012), provides that an insurer can
avoid a lawsuit on an overdue PIP claim by issuing payment within 30 days after receipt
of the claimant’s pre-suit demand letter, together with applicable interest, and a 10%
penalty.


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regarding confession of judgment. During this first hearing, USAA stipulated that it made

the payment of benefits after the suit was filed. After the court and counsel discussed the

issues, the hearing was rescheduled for a later date. The court wanted to ensure that the

parties had ample time to prepare and that there would be no surprises to either side.

The court and the parties agreed that USAA’s summary judgment motions did not require

supplementation and, thus, were “frozen” by the court for argument at the next hearing.

The court did, however, advise the parties that USAA could file a response to

Respondent’s confession of judgment motion within ten days and Respondent would

have five days to reply. USAA did not file a response to Respondent’s motion.

       At the second hearing, USAA advised the court that it was mistaken when it

stipulated that the payments were made after the filing of the suit. For the first time, USAA

contended that the checks were prepared and sent before Respondent filed suit, thereby

barring any possible application of the confession of judgment doctrine. Respondent

claimed that it was surprised and would be unfairly prejudiced by this change in USAA’s

position. Respondent objected to USAA's request to withdraw its previous stipulation that

payments were made after suit was filed. The county court ultimately concluded that

USAA would not be permitted to withdraw its prior stipulation because it did not alert

Respondent to the new issue by filing a response during the time period between the two

hearings.

       The county court held a third hearing on the motions. Shortly after the third

hearing, the county court issued its written order, ruling in Respondent’s favor. It found

that Respondent had standing and that USAA had confessed judgment. The order stated,

inter alia: “It is undisputed in the present matter that [USAA] made payment of policy




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proceeds to [Respondent] after suit was filed.” The county court ruled that Respondent

was entitled to recover its reasonable attorney’s fees and costs, in an amount to be

determined later.

       USAA appealed the county court decision and the circuit court affirmed through a

written order. In its appeal to the circuit court and in its petition for certiorari to this Court,

USAA argued that it made the payments before, not after, Respondent filed suit. USAA

asserted that the first check was prepared four days before the suit was filed and received

by Respondent on the day the suit was filed. It further contended that the second check

was prepared the day before the suit was filed and sent either the day before or the same

day that suit was filed, and received by Respondent three days after the suit was filed.

USAA relies on section 672.736(4)(b)5, Florida Statutes (2012), for the proposition that

for purposes of PIP benefits, a payment is deemed to have been made when it is correctly

addressed and placed in the mailbox with the proper postage.

       We find that USAA waived the argument that payment was made before the suit

was filed on the basis of the date the payment was mailed rather than date it was received.

USAA’s initial stipulation, that payment was made after suit was filed, was never

withdrawn. Although USAA attempted to withdraw the stipulation, the county court denied

that relief. USAA did not seek review of that ruling when it appealed to the circuit court,

thereby waiving any opportunity to effectively disavow the stipulation. See Advanced

Chiropractic, 103 So. 3d at 869. Thus, the original stipulation controls, and USAA is

estopped from arguing any different sequence of payment. Likewise, USAA’s argument

that PIP payments are deemed made when mailed, specifically relying upon section

627.736(4)(b)5., must be rejected as the argument was never presented to the county




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court and was raised for the first time on appeal. Id. at 869; see also Hoskins v. State,

75 So. 3d 250, 257 (Fla. 2011).

       We have carefully considered the parties’ other arguments on the issues that are

before us. We find that no miscarriage of justice occurred and the circuit court, acting in

its appellate capacity, did not depart from clearly established principles of laws.

Accordingly, USAA’s petition for certiorari is denied.

       PETITION DENIED.

SAWAYA and ORFINGER, JJ., concur.




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