10 Fla. L. Weekly Supp. 1059a
Insurance — Personal injury protection — Claim — Denial — Insurer has not yet denied claim and, therefore, insured’s suit is premature where insurer sent request for explanation of benefits and staff person of insured’s attorney’s office sent insurer note stating medical provider is unable to produce requested documentation — Note not purporting to be communication authorized by medical provider was insufficient to require insurer to decide within ten days of its receipt whether to pay claim, deny claim or initiate formal discovery — Summary judgment granted in favor of insurer
STEPHEN SOUDERS, Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, a foreign corporation authorized to do business in Florida, Defendant. County Court, 20th Judicial Circuit in and for Charlotte County, Civil Action. Case No. 03-472-SP. September 22, 2003, nunc pro tunc to September 10, 2003. Peter A. Bell, Judge. Counsel: Mark B. Saine, Punta Gorda, for Plaintiff. Don Mathews, Matt Hellman, P.A., Plantation, for Defendant.
AMENDED ORDER
THIS CAUSE having come before this Honorable Court on Defendant’s, PROGRESSIVE AUTO PRO INSURANCE COMPANY, Motion for Summary Judgment and Amended Motion for Summary Judgment/Summary Disposition, the Court having reviewed the file and being fully and otherwise advised in the premises does hereby find as follows:
1. The Plaintiff received medical services which were billed to his PIP carrier, the Defendant.
2. The Defendant, upon receipt of at least one of the bills, sent a request for an Explanation of Benefits (see Exhibit A to Defendant’s Motion for Summary Judgment).
3. Florida Statute §627.736(4)(b) (2001) provides benefits are generally due and payable within “30 days after the insurer is furnished with notice of the fact of a covered loss. . .”.
4. Florida Statute §627.736(6)(b) provides, pursuant to a 1999 amendment, a temporary stay of the foregoing 30 day deadline if the insurer makes a request for Explanation of Benefits.
5. The breadth of the matters which can be addressed in the request for an Explanation of Benefits is discussed in the Kaminester v. State Farm, 775 So.2d 981 (Fla 2000) case.
6. The documentation requested by the Defendant in the instant case from the medical service provider seems reasonable under the facts of this case (a four physician review of the billing) and the language of the Kaminester (supra) case.
7. The insurer need not request every type of discovery permitted under Florida Statute §627.736(6)(b) and a failure to request “. . .a sworn statement. . . .” as part of the Explanation of Benefits is most likely a waiver of that part of the “Explanation” inasmuch as the Statute only authorizes one informal request for an Explanation of Benefits and a piecemeal request for the Florida Statute §627.736(6)(b) discovery materials would seem to be inconsistent with the Legislature’s attempts to provide for an informed evaluation of the claim by the insurer balanced against a timely payment of reasonable bills.
8. In the instant case a staff person in the office of the attorney for the Plaintiff sent a letter dated March 5, 2003, (see Exhibit B to Plaintiff’s response to Defendant’s Motion for Summary Judgment) to the Defendant indicating, among other things, “R.S. Medical is unable to produce this documentation” referring to the documentation requested in Defendant’s request for Explanation of Benefits. The best practice under the Statute would be for an authorized staff person with R.S. Medical to sign an Affidavit that they have examined the records of R.S. Medical and the requested documentation is not available. This would supply the quality of evidence it seems the Legislature was attempting to provide insurers for their evaluation of claims. Nonetheless, a letter from a staff person of the insured’s attorney’s office not purporting to be a communication authorized by R.S. Medical is clearly insufficient to require the Defendant to decide within ten (10) days of its receipt whether to pay the claim, deny the claim in whole or in part or initiate formal discovery through the Courts.
WHEREFORE, PREMISES CONSIDERED, IT IS HEREBY
ORDERED AND ADJUDGED that Defendant’s Motion shall be and the same is hereby granted upon a finding that the Defendant has not, as yet, denied the claim and, therefore, this suit is premature.
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