12 Fla. L. Weekly Supp. 592a
Insurance — Personal injury protection — Declaratory action — Insurer’s obligation to produce policy, declarations page and PIP log on pre-suit request from medical provider — Insurer is required as matter of law to provide policy, declarations page and PIP log in response to pre-suit demand — Insurer’s assertion that Gramm-Leach-Bliley Act prohibits disclosure is rejected — Act is not applicable and, if it were, information sought is not of type intended to be protected — Fact that assignment of benefits does not provide for release of information does not preclude disclosure since provider/assignee is entitled to all information in connection with suit to which insured would be entitled
FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, MD, PA., as assignee of Dean Walker, Plaintiff, vs. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-2105. March 16, 2005. J.R. Sloop, Judge. Counsel: Richard O. Hale, IV, Rutledge Bradford, P.A. Orlando. Scott Simmons, Lake Mary.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before this Court on Plaintiff’s Motion for Final Summary Judgment and this Court having heard arguments of counsel and otherwise being informed finds that the parties stipulate as follows:
FACTUAL BACKGROUND
1. The assignor was injured in a motor vehicle accident that occurred on or about August 18, 2003.
2. The Plaintiff rendered treatment to the assignor as a result of those injuries.
3. The Defendant received Plaintiff’s bill for care and treatment rendered to Dean Walker on or about September 11, 2003. The bill went unpaid.
4. Thereafter, on April 27, 2004, A Notice of Intent to Initiate Litigation was sent to the Defendant’s designated “designee” pursuant to Florida law and was signed for by the Defendant on April 29, 2004. Included in the Notice package was a request for a copy of the policy, declarations page and PIP log, as provided for in Florida statutes.
5. In response to the Plaintiff’s demand letter, the Defendant sent correspondence, indicating the insured’s benefits had been applied to the Deductible. The Defendant requested a written authorization from its insured in order to comply with the Plaintiff’s request and further indicated that the relief sought was not covered under a demand letter.
6. Upon receiving the Defendant’s correspondence, the Plaintiff contacted the Defendant via fax on May 5, 2004, again requesting information that was not provided in response to the initial demand, specifically a copy of the policy, declarations page and PIP log. The letter also directed the carrier to forward this information to avoid litigation.
7. The Defendant did not respond to the follow up request for the PIP log, policy and declarations page.
ARGUMENT OF COUNSEL
The Plaintiff argued that pursuant to the above referenced statutes, as well as Florida case law interpreting those statutes, that summary judgment was appropriate for the Plaintiff and that the Defendant, as a matter of law, was required to provide the requested information pre-suit and it’s failure to do so constituted a claim for which relief could be granted on the merits. The Defendant argued that it was not required by any statute to provide, a copy of an insurance policy, declarations page or PIP log pursuant to a pre-suit demand; that the assignment executed by the insured did not provide for the release of the requested information and that the Gramm-Leach-Bliley Act prohibited disclosure of this information.
ANALYSIS OF THE LAW
In Integra Diagnostics v. Reliance National Indemnity, (Fla. Broward County, 2001) Judge Herring ruled that a Defendant’s conduct in belatedly furnishing a PIP payout sheet post suit, after refusing to honor a pre-suit request for the document amounted to a confession of judgment, entitling the Plaintiff to attorney’s fees. The Plaintiff had requested a PIP log pre-suit, the Defendant denied the request, the Plaintiff filed a declaratory judgment action and the Defendant thereafter provided a log, showing the bill had been applied to the deductible.
The Defendant made the same argument that neither the policy nor any pertinent statute required an insurer to provide it’s insured or a provider with a PIP sheet. The court ruled that the Defendant was “equitably estopped from taking such a materially inconsistent position”. The court went on, “the Defendant’s assertions are wholly unpersuasive, as the attempted analogy is illusory in the effort to bolster the Defendant’s untenable position”. The Plaintiff’s claim for declaratory relief was granted on the merits, on the basis that it made eminent common good sense on public policy grounds. Again the court reserved jurisdiction for the assessment of attorney’s fees.
In ROM Diagnostics v. Security National Insurance Company, 9 Fla. L. Weekly Supp 323b (Fla. Orange County 2002) the county court in Orange County, (Judge Arnold presiding) addressed this situation. In ROM, the Plaintiff submitted billing to the Defendant and was advised the bill would not be paid, as it had been applied to the insured’s deductible. The Plaintiff in response, submitted a written request to the Defendant to provide them with a copy of a PIP log so that it could verify what it was being told. The Defendant refused to provide the information and the Plaintiff filed suit, seeking declaratory relief regarding it’s right of access to the PIP log. After suit was filed, the Defendant provided the information and argued the suit was moot and demanded the Plaintiff dismiss it’s claim. The Defendant argued that neither contract law nor statute permitted the Plaintiff to bring such a claim. The Plaintiff argued that 627.736(6)(d), 627.7401 and 627.4137 required production of the requested information to an individual or provider.
The court granted the Plaintiff’s declaratory relief on it’s merits, stating, “failure of insurers to recognize and comply with proper assignments only serve to increase litigation and thwart public policy, as well as to impugn the intent of the No-fault statute. When a health care provider is provided a PIP log pre-suit, this allows them to know their respective position as it relates to the insured’s deductible. To hold otherwise would encourage unnecessary litigation and potentially subject the provider to sanctions pursuant to Fla. Stat. 57.105(1).” The court went on, “Plaintiff properly sought declaratory relief on the issue of whether the Defendant insurer is required on a pre-suit request from a health care provider to produce a current PIP log to the provider . . . ” and reserved jurisdiction to award attorney’s fees.
Most recently, Judges Arnold, Brewer and Cheek in Orange County and Judges Herr and Sloop in Seminole county have each granted Plaintiff’s Motion for Summary Judgment on this very issue. See Rural Metro Ambulance a/a/o Aletha Bryant vs. Liberty Mutual, 11 Fla. L. Weekly Supp. 583 (2004); Physical Medicine Group a/a/o Vivian Nieves vs. Allstate Insurance Company; Rural Metro Ambulance a/a/o William Zaniboni vs. AIG Insurance; Rural Metro Ambulance a/a/o Alma Ortiz vs. U.S. Security; Florida Emergency Physicians a/a/o Stephanie Carrico vs. American Vehicle Insurance Company; Rural Metro Ambulance a/a/o Frank Cipris vs. State Farm.
The Defendant’s assertions that the Gramm-Leach-Bliley act is applicable and controlling is rejected. The court finds that even if the act were deemed to be applicable, the information being sought is not of the type intended to be protected. The court cannot think of personal, nonpublic information that would be contained in a PIP log; declarations page or policy intended to be covered by the act. Further, the court notes there was no attempt by the Defendant to provide any of the information requested in a redacted form, to protect any potentially personal, nonpublic information.
Finally, the Plaintiff accepted an assignment in this matter and as such, stands in the shoes of the insured and is entitled to all information, in connection with this lawsuit, that the insured would otherwise be entitled. That would include a copy of the policy, declarations page and PIP log. Based on the foregoing, it is
ORDERED AND ADJUDGED that:
Plaintiff’s Motion for Final Summary Judgment is GRANTED. The Court reserves jurisdiction regarding the issues of fees and costs.
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