12 Fla. L. Weekly Supp. 593a

Insurance — Personal injury protection — Declaratory action — Insurer’s obligation to produce PIP log on pre-suit request from medical provider — Insurer is required as matter of law to provide PIP log in response to pre-suit demand — Insurer’s inadvertent production of log after suit was filed is immaterial to ruling in declaratory action since, whether or not log has been produced, insurer’s obligation to produce it remained the same

FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, MD, PA as assignee of William Eve, Plaintiff, vs. AMERICAN VEHICLE INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-2624. March 15, 2005. S. Joseph Davis, Judge. Counsel: Rutledge M. Bradford, Rutledge M. Bradford, P.A., Orlando. Sean McDonough, Orlando.

AFFIRMED. 13 Fla. L. Weekly Supp. 973a

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 being otherwise fully advised in the premises, the parties hereby stipulate to the following facts:

1. This is a claim for declaratory relief arising out of the Defendant’s failure to provide a PIP log pursuant to a pre-suit demand.

2. In this case, the Plaintiff sent a Notice of Intent to Initiate Litigation on or about June 2, 2004 and requested that the Defendant provide, pursuant to Florida Statutes 627.736(6)(d); 627.7401 and 627.4137 a copy of the policy in effect and the declarations page for the policy period as well as a copy of the PIP log.

3. The Defendant received and responded to the demand letter on or about June 6, 2004 indicating that the bill had been applied to the patient’s $2000.00 deductible and that a copy of the declarations page and PIP log would be sent under separate cover.

4. Thereafter, on or about June 9, 2004, the Defendant provided a copy of the declarations page, but failed to provide a copy of the PIP log.

5. On or about June 27th, the Plaintiff responded via facsimile to the receipt of the declarations page and advised Defendant again that no PIP log had been provided.

6. Receiving no reply from the Defendant, the Plaintiff filed suit on July 12, 2004.

7. Thereafter, the Defendant inadvertently provided a copy of the PIP log.

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 maintain, much less provide, a copy of a PIP log pursuant to a pre-suit demand and that although it might be good policy to do so, none of the statutes referenced by the Plaintiff provided a vehicle to obtain the information requested or obligated the Defendant to comply.

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. Based on the foregoing, it is

ORDERED AND ADJUDGED that:

Plaintiff’s Motion for Final Summary Judgment is GRANTED. The court finds that the Defendant is required as a matter of law to provide a PIP log in response to a pre-suit demand. The inadvertent production after suit was filed is immaterial to this court’s ruling. Whether or not the document had been produced, the Defendant’s obligation to produce it remained the same. Final summary judgment is entered in favor of Plaintiff. The Court reserves jurisdiction regarding the issues of fees and costs.

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