Florida Supreme Court Allstate Fee Schedule Litigation: Shall We Read The Tea Leaves?

The Florida Supreme Court recently heard oral argument in Allstate Insurance Company v. Orthopedic Specialists, No. SC15-2298. At issue was an appeal of a ruling that it wrongfully limited its reimbursements under Medicare fee schedules for motorists’ personal injury protection (PIP) claims.

Allstate’s policy language has been found to be exceedingly clear and concise by the majority of appellate courts across the state. A ruling affirming the Fourth District Court of Appeals decision would only serve to blindside Florida’s citizens with additional bills for costly co-payments while also limiting the amount of coverage available to them.

While we wait for a final opinion, industry professionals have been closely watching the court for any and all clues. Politics of the high court aside, what “shall” we analyze to determine how the justices will rule?

One such clue seems to be overlooked, yet is hiding in plain sight. On the very day that the court heard oral argument in Allstate v. Orthopedic Specialists the court issued a Per Curiam Opinion amending the Florida Rules of Civil Procedure in which the word “shall” was stricken over 200 times. See In Re: Amendments to the Florida Rules of Civil Procedure No. SC16-155. Ironically and perhaps persuasively, the court writes unanimously that “[t]he amendments shall become effective January 1, 2017, at 12:01 a.m.” (emphasis mine.)

More recently, numerous Per Curiam Opinions amending various procedural and administrative rules have been issued. They have seen the court continue to favor “shall”. Amendments to the Rules of Criminal Procedure, Rules of Appellate Procedure, Code of Judicial Conduct and Small Claims Rules did not remove any “shall” provisions.

Pouring over minor amendments by the high court with no clear answer, perhaps we are left to channel Judge May’s epic dissent in the Fourth District Court of Appeals Opinion in which she found Allstate’s policy language to be unambiguous and compliant. While accusing the medical providers of leading the majority down the yellow brick road she writes frustratingly, “As the Pope once asked Michelangelo during the painting of the Sistine Chapel: “When will there be an end?”

We “shall” know soon.

Filed under Legislation, Personal Injury Protection (PIP)