## Facts

- Maximo Masis was injured in a January 4, 2002 automobile accident in Miami.
- Masis received treatment at Custer Medical Center from January 8 to March 1, 2002 for neck, shoulder, and low-back pain, incurring $4,250 in charges.
- Masis applied for personal injury protection (PIP) benefits under his United Automobile Insurance Company policy; his counsel notified United of representation, and United opened a claim file.
- Custer (as Masis’s assignee) submitted its final bill, which United received on March 26, 2002.
- After treatment ended and bills were submitted, United scheduled a compulsory medical examination for April 11, 2002 by certified letters to Masis and his counsel; Masis did not attend or respond.
- United refused to pay Custer’s bill based on Masis’s failure to attend the examination.

## Issues

1. Whether a district court may grant second-tier certiorari to overturn a circuit court appellate decision based on an alleged error in allocating the burden of proof, absent a departure from the essential requirements of law causing a miscarriage of justice.
2. In the PIP context, whether an insurer’s claim of forfeiture for failure to attend a medical examination operates as an affirmative defense for which the insurer bears the burden of pleading and proof (as background to the certiorari inquiry).

## Decision

- The Florida Supreme Court quashed the district court’s second-tier certiorari decision and remanded with instructions to reinstate the circuit court appellate division’s ruling.
- The Court held the district court misapplied the second-tier certiorari standard and effectively created an unauthorized additional layer of appellate review.
- The circuit court’s decision reversing the directed verdict did not constitute a departure from the essential requirements of law and did not result in a miscarriage of justice.

## Legal Principles

- Second-tier certiorari is extremely limited; it is not a substitute for a second appeal.
- Second-tier certiorari relief is available only when the circuit court (acting in its appellate capacity) departs from the essential requirements of law and the error results in a miscarriage of justice.
- A district court’s review focuses on whether procedural due process was afforded and whether the correct law was applied; mere misapplication of law to facts ordinarily does not justify certiorari.
- An insurer’s policy-based avoidance or forfeiture provision may be treated as an affirmative defense that the insurer must plead and prove; at minimum, a circuit court’s adoption of that approach can be a reasonable application of existing law insufficient to justify second-tier certiorari intervention.

## Conclusion

The Florida Supreme Court held that second-tier certiorari cannot be used to correct routine legal error in a PIP burden-of-proof dispute; because the circuit court’s reversal of the directed verdict was not a fundamental legal departure causing a miscarriage of justice, the district court lacked a proper basis to grant certiorari.


Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086 (Fla. 2010)