12 Fla. L. Weekly Supp. 87a
Attorney’s fees — Insurance — Personal injury protection — Declaratory judgments — Confession of judgment — Insurer’s post-suit furnishing of PIP log requested pre-suit by medical provider did not constitute confession of judgment entitling provider to attorney’s fees — Although insurer’s conduct in not furnishing PIP log or otherwise advising provider that bills had been applied to deductible constituted negligence, provider could have obtained declarations page from insured to determine amount of deductible, thereby vitiating need for declaratory judgment action
ASCLEPIUS MEDICAL, INC. AND FINLAY DIAGNOSTIC CENTER, INC., assignee of Bryant Mendoza, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-12286 SP 25(1). October 22, 2004. Mark King Leban, Judge. Counsel: Kevin W. Whitehead, Downs, Brill, Whitehead, P.A., Coral Gables. Stephen Coxhead, Coral Gables.
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come to be heard on Plaintiff’s, ASCLEPIUS MEDICAL, INC. AND FINLAY DIAGNOSTIC CENTER, INC., assignee of Bryant Mendoza’s, Motion for Summary Judgment, the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is,
ORDERED AND ADJUDGED:
1. The Plaintiff’s Motion for Final Summary Judgment is DENIED. After reviewing the court file, including deposition transcripts, pleadings, and filed affidavits, and hearing argument of counsel, this Court finds as a matter of law that the Plaintiff is not entitled to Summary Judgment.
FINDINGS OF FACT
2. On 11/4/02, the Plaintiff sued the Defendant for breach of contract and violation of § 627.736, which requires the insurer to pay all reasonable and necessary medical expenses within 30 days from notice of the loss and amount of same unless it has established that it has reasonable proof that it is not responsible for payment of the charges.
3. The Complaint alleges Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, refused and continues to refuse to pay the usual, customary, and reasonable medical expenses, including statutory interest, sustained by the claimant, Bryan Mendoza, and charged by the Plaintiffs, ASCLEPIUS and FINLAY, as a result of the insured’s 11/25/01 motor vehicle accident, within 30 days from receipt of said expenses, and failed to establish it has reasonable proof it was not responsible for payment of the charges.
4. On or about 9/30/03, the Defendant filed its Second Motion for Leave to Amend its Answer. No order has yet been entered on this Motion. However, the Motion for Summary Judgment and this Order addresses the Defendant’s Proposed Second Amended Answer.
5. On 10/17/03, the Plaintiffs voluntarily dismissed Counts I and II of its Complaint. The only remaining Count (III) is a declaratory action.
6. As its Fourth Amended Affirmative Defense the Defendant alleges the insurance policy at issue includes a $2,000.00 deductible, whereby the policy holder, contractually agreed to be financially responsible for the first $2,000.00 in medical services, treatments, and/or PIP benefits in the event of a loss that occurs within the policy period. Defendant states the Plaintiff’s bill for medical services was applied towards this claimant’s deductible, therefore Defendant is not liable for payment of said bill, nor is said bill overdue.
7. Prior to filing suit, the undersigned requested a PIP log from the Defendant on 10/2/02, sent via certified mail return receipt, to ascertain why the Defendant had not paid its bills.
8. The Defendant never responded to this request and as a result, the Plaintiff filed suit.
9. On 12/28/02, the Plaintiff propounded its Request to Produce to the Defendant. The Defendant served its responses on or about 1/27/03. In response to paragraph 1 of the Plaintiff’s Request to Produce for a the most recent PIP printout in regards to the Plaintiff’s and/or patient’s and/or insured’s and/or claimant’s claim for PIP benefits, the Defendant objected on the grounds of work product and the claimant’s right to privacy.
10. The Plaintiff took the deposition of the Defendant’s litigation adjuster, on 8/21/03. During the course of the deposition, the adjuster produced a PIP log which indicated all of the Plaintiff’s bills had been applied to the deductible. This was the first time the Defendant notified the Plaintiff the subject medical expenses were applied to the deductible.
11. Because the Plaintiff was unsure why the Defendant had not paid its bills, it requested the PIP log. After the Defendant failed to respond to this request, the Plaintiff filed suit and included the declaratory relief count in its complaint. The Defendant filed a Motion to Strike Count III of the Complaint pertaining to declaratory relief, and this Court denied the Defendant’s motion on 2/6/03.
12. In its initial Answer, the Defendant did not raise any affirmative defenses. In its Amended Answer and Affirmative Defenses, filed on or about 5/14/03, the Defendant never raised the deductible as an affirmative defense. The first time that the Defendant informed the Plaintiff that its bills were applied to the deductible was on 8/21/03, the day of the adjuster’s deposition.
ISSUES OF LAW
13. This Court finds that the Defendant’s conduct with respect to furnishing the PIP log and otherwise advising the Plaintiff that its bills had been applied to the deductible constituted negligence.
14. This Court finds, however, that the Plaintiff did not have to file suit to obtain this information. For instance, the Plaintiff could have obtained the declarations page of the subject policy from the insured to determine if there was a deductible and if so, the limits.
15. This Court finds that despite some Orders entered by other Judges to the contrary, the furnishing of the PIP log after suit was filed where there had been a pre-suit request for the PIP log does not constitute a confession of judgment entitling the Plaintiff to attorney’s fees pursuant to § 627.428. See Integra Diagnostics v. Reliance National Indemnity Co., 8 Fla. L. Weekly Supp. 394c (17th Judicial Circuit, Broward 3/14/01) and ROM Diagnostics v. Security Nat. Ins. Co., 9 Fla. L. Weekly Supp. 323b (Fla. 9th Jud. Cir. 2002).
16. The purpose of the Declaratory Judgments statute is to obtain judgment on the rights of which have never before been determined, citing Peregood v. Cosmides, 663 So. 2d 665 (Fla. 5th DCA 1995). The purpose of declaratory judgment is to afford the parties relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations. Coalition for Adequacy and Fairness v. Chiles, 680 So. 2d 400 (Fla. 1996).
17. This Court finds that O’Shields v. United Automobile Insurance Company, 790 So. 2d 570 (Fla. 3rd DCA 2001) does not change the result in this instance and is distinguishable. O’Shields was not a declaratory action, but a case where the insurer did not advise the insured that it had sent payment to the lienholder of the insured’s stolen vehicle, or the amount of the settlement, so that the insured could “verify that the amount United Auto had paid the lienholder was adequate.” Id. at 571. Under the express terms of the insurance contract, the insured “had a right to the settlement documents, and a right to be informed regarding the settlement with the lienholder.” Id. No such situation exists in the case at bar where, as noted in paragraph 14, above, Plaintiff, well aware of the amount of the bills it submitted to United Auto, could easily have ascertained from the declarations page of the subject policy that the deductible had not been met, thus vitiating the need for the declaratory action.
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