12 Fla. L. Weekly Supp. 867a
Insurance — Personal injury protection — Rehearing — Provider’s policy of giving 50% discount to patients who pay for medical treatment in cash rather than through insurance violates state law — Motion for rehearing in which provider seeks to introduce evidence that discount policy was not in effect on date of service at issue is denied — Final judgment with prejudice is appropriate as insurer or insured is not required to pay claim for service that was not lawful when rendered
KENNETH HAWTHORNE, M.D., a/a/o Kalavatiben Patel, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2002-34885 COCI. June 13, 2005. Stasia Warren, Judge. Counsel: Stephen R. Robinson, Cameron, Hodges, Coleman, LaPointe, Wright, P.A., Daytona Beach. Kimberly P. Simoes.
ORDER ON PLAINTIFF’S MOTION FOR RECONSIDERATION/REHEARING AND DEFENDANT’S MOTION FOR FINAL JUDGMENT WITH PREJUDICE
[Original Opinion at 12 Fla. L. Weekly Supp. 265a]
THIS MATTER came on to be heard before the court upon Plaintiff’s Motion for Reconsideration (which the court treats as a Motion for Rehearing) and Defendant’s Motion for Final Judgment with Prejudice, and the Court having reviewed the motion, the court file, the evidence presented, heard argument of counsel, and being otherwise fully advised in the premises, the court finds as follows:
The court entered an Order granting Defendant’s Motion for Summary Judgment on December 15, 2004. The Defendant’s argument at the hearing on its Motion for Summary Judgment was that the Plaintiff on the date of service, contrary to the PIP statute, accepted discounted amounts from patients that paid cash at the time of service but charged the carrier the full rate. This argument was clearly stated in Defendant’s Motion and was argued during the hearing. It appears that during the hearing the Plaintiff did not argue that his “cash discount” program was not in place until four months after the date of service in the instant case. Ten days after the hearing the Plaintiff moved to reopen the hearing for additional evidence and for reconsideration and also filed an affidavit stating the “cash discount” was not available to anyone at the time of the date of service in the instant case.
Florida Rule of Civil Procedure 1.510 governs summary judgments and provides adequate safeguards to assure that a nonmoving party will have a fair opportunity to come forward and show through depositions, affidavits, etc. . . that a genuine issue of fact exists before the court rules on a summary judgment. However, once a summary judgment has been entered, the granting or denial of a rehearing is a matter within the sound discretion of the trial court; but, as held in Blue v. Blue, 66So.2d 228 (Fla. 1953), this discretion cannot be exercised arbitrarily. Florida law provides that a trial judge should require a convincing showing of exigent circumstances before accepting affidavits offered for the first time on a motion for rehearing after granting summary judgment. Willis v. L.W. Foster Sportswear Co., 352 So.2d 922 (Fla. 2nd DCA, 1977). An appropriate exigent circumstance may be where through no fault or diligence by the nonmoving party, proof may not become available until after the motion for summary judgment is heard. See id. The court can find no such circumstance in the instant case as the Plaintiff knew when he began his “cash discounts” and should have known that the date of service in the instant case was prior to that and the affidavit should have, at least, been provided at the time of the hearing. Therefore, the court denies the Plaintiff’s Motion for Rehearing.
Defendant moves for final judgment with prejudice as the court in its Order on Defendant’s Motion for Summary Judgment found that the Plaintiff violated the PIP statute by maintaining a fees schedule for cash patients and a separate schedule for individuals who paid for medical services through medical insurance. Defendant further argues that under Florida Statute 627.736(5)(b) that an insurer or insured is not required to pay a claim or charges for any service or treatment that was not lawful at the time rendered” and that final judgment with prejudice is appropriate in the instant case. The court agrees with the Defendant.
Accordingly, it is
ORDERED AND ADJUDGED
1) that Plaintiff’s Motion for Reconsideration is hereby DENIED.
2) that Defendant’s Motion for Final Judgment with Prejudice is GRANTED. The above titled cause be and the same is hereby dismissed with prejudice as to any and all claims against Defendant and each party to bear its own costs. The Plaintiff shall go henceforth without delay.
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