11 Fla. L. Weekly Supp. 583a
Insurance — Personal injury protection — Declaratory judgment — Summary judgment is granted in favor of provider/assignee whose bill was denied due to exhaustion of policy benefits in declaratory judgment action seeking declaration that provider is entitled to receive PIP payout log, declarations page, and copy of policy — Standing — Assignment — Equitable assignment — Where medical provider provided emergency treatment and transport to insured, and insured deteriorated significantly en route to hospital and died eight days later without executing assignment of benefits in favor of provider, equitable assignment was created
RURAL METRO AMBULANCE, INC., as assignee of Aletha Bryant, Plaintiff, vs. LIBERTY MUTUAL INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 03-SC-13018. April 28, 2004. Leon B. Cheek, III, Judge. Counsel: Rutledge M. Bradford, Rutledge M. Bradford, P.A., Orlando, for Plaintiff. Ana M. Lopez, Orlando, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (As to Count II for Declaratory Relief of the Plaintiff’s Complaint)
THIS MATTER having come before this Court on Plaintiff’s Motion for Summary Judgment as to Count II of it’s Complaint for Declaratory Relief and this Court having heard arguments of counsel and being otherwise fully advised in the premises, finds as follows:FACTS:
1. The Plaintiff filed a complaint for declaratory relief pursuant to Chapter 86 of Florida statutes, arising out of a motor vehicle collision that occurred on or about 5/28/03.
2. The Plaintiff in this matter is RURAL METRO AMBULANCE INC.
3. On or about 5/28/03, the insured, Aletha Bryant was involved in a motor vehicle collision which required emergency treatment and transport to a hospital. The emergency treatment and transport was rendered by the Plaintiff, Rural Metro Ambulance.
4. The Plaintiff submitted it’s bill to the Defendant for payment. The bill was not paid.
5. Thereafter, the Plaintiff sent a Notice of Intent to Initiate Litigation, on September 23, 2003 as well as a demand for a declarations page, copy of the policy and a PIP log, pursuant to Florida Statutes627.4137 and 627.736(6)(d). In response to the September 23rd demand, the Defendant responded that the benefits had exhausted on 6/24/03. Thereafter, the Plaintiff made two additional written requests on October 7 and October 27 for a declarations page, a copy of the policy and a PIP payout log to ascertain whether the benefits truly were exhausted and whether the benefits had been properly applied in the order in which they were received.
6. The Defendant failed to comply with the initial request for policy information or either of the two subsequent requests, resulting in the filing of this declaratory judgment action on October 31, 2003.
7. Thereafter, on December 11th, the Defendant provided a copy of it’s PIP log. On January 6th, 2004, the Defendant provided a copy of it’s declarations page. The Plaintiff argued that the Defendant confessed judgment by providing a copy of the PIP log and Declarations page after suit was filed.
8. The parties agreed that the assignor, Aletha Bryant had not executed an assignment of benefits in favor of the Plaintiff, as she deteriorated significantly en route to the hospital and subsequently died 8 days later.
9. The parties each moved for summary judgment.
based on the foregoing it is ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for Summary Judgment as to Count II of it’s complaint is hereby GRANTED.
2. The Plaintiff was entitled to a copy of the insured’s declarations page; policy and PIP log pursuant to Florida statutes and case law interpreting those statutes.
3. The Defendant’s failure to provide the declarations page, policy and PIP payout log as requested created an issue suitable for declaratory relief.
4. The Court is aware of and heard argument from the Defendant regarding Dynamic Imaging MRI Center, Inc. vs. Nationwide Assurance Co., 10 Fla. L. Weekly Supp. 1021b (Orange County, Judge Arnold, September 2003). However, the court is also aware of Judge Arnold’s subsequent decision in Physical Medicine Group a/a/o Vivian Nieves (Orange County, Judge Arnold, February 2004). The court finds the subsequent decision more persuasive.
5. The Defendant’s assertion that the Plaintiff lacks standing to bring this claim is untenable. The facts show that the insured, Aletha Bryant died while hospitalized for her injuries and the Defendant’s suggestion that the Plaintiff must have an assignment in this situation in order to pursue a cause of action is unpersuasive and in contravention of the purpose of the PIP statute. Further, Florida law provides for an equitable assignment and certainly such theory is entirely appropriate under the facts of this case.
7. The court reserves jurisdiction for the assessment of costs and attorneys fees as may be appropriate.
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