SOUTHERN-OWNERS INSURANCE COMPANY

v.

JACLYN HENDRICKSON

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

SOUTHERN OWNERS INSURANCE

COMPANY,

Petitioner,

v. Case No. 5D19-2799

JACLYN HENDRICKSON,

Respondent.

________________________________/

Opinion filed May 15, 2020

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

Carri S. Leininger, of Williams, Leininger & Cosby, P.A., North Palm Beach, for Petitioner.

Matthew J. Mitchell, of Rue & Ziffra, P.A., Port Orange, for Respondent.

WALLIS, J.

Petitioner, Southern Owners Insurance Company, seeks second-tier certiorari review of the circuit court's order affirming the county court's order granting summary judgment in favor of Respondent, Jaclyn Hendrickson. We agree that the circuit court's order ignores the plain meaning of section 627.736(1)(a)5., Florida Statutes, and violates

2 a clearly established principal of law resulting in a miscarriage of justice. Therefore, we grant the petition for writ of certiorari. In the underlying county court case, Respondent sought reimbursement for services provided by a person agreed upon by both parties to be a "licensed massage therapist." The controlling law on this subject clearly states that, "[m]edical benefits do not include massage as defined in s. 480.033 or acupuncture as defined in s. 457.102, regardless of the person, entity, or licensee providing massage or acupuncture, and a licensed massage therapist or licensed acupuncturist may not be reimbursed for medical benefits under this section." § 627.736(1)(a)5., Fla. Stat. Other Florida courts have recognized that this statute excludes licensed massage therapists from being reimbursed for medical benefits. Geico Gen. Ins. Co. v. Beacon Healthcare Ctr., Inc., 45 Fla. L. Weekly D437 (Fla. 3d DCA Feb. 26, 2020); McCarty v. Myers, 125 So. 3d 333, 335 (Fla. 1st DCA 2013). The plain text of section 627.736(1)(a)5. precludes a licensed massage therapist from being reimbursed for medical benefits. In its ruling, the circuit court ignored the plain language of the statute and violated this clearly established principal of the law. Furthermore, the circuit court's ruling resulted in a miscarriage of justice because Petitioner is now liable for a medical benefit that the law explicitly prohibits. Consequently, we find second-tier certiorari relief is appropriate, and grant the petition. See Nader v. Fla. Dep't of High. Saf. & Motor Veh., 87 So. 3d 712, 727 (Fla. 2012) ("[S]tatutes also constitute 'clearly established law,' meaning that a district court can use second-tier certiorari to correct a circuit court decision that departed from the essential requirements of statutory law."); 14269 BT LLC v. Vill. of Wellington, 240 So.

3 3d 1, 3 (Fla. 4th DCA 2018) ("The circuit court's failure to obey the plain language of a statute can form the basis for second-tier review.").

PETITION GRANTED.

COHEN and TRAVER, JJ., concur.