12 Fla. L. Weekly Supp. 941a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 13 Fla. L. Weekly Supp. 573a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 12 Fla. L. Weekly Supp. 1145b
Insurance — Personal injury protection — Declaratory judgment — Insurer’s obligation to provide PIP log on pre-suit request from medical provider — Appellate court has subject matter jurisdiction of appeal of order granting medical provider’s motion for final summary judgment on claim for declaratory relief, despite fact that insurer’s inadvertent handing over of requested documents to provider has rendered issue of insurer’s obligation to provide documents moot, where action involves important issues that are capable of repetition yet evading review — Where PIP statute requires that insurer furnish injured person with copy of all information obtained by insurer under statute, but PIP log is not defined in statute and there is no requirement that insurer maintain log, PIP log is not designated requirement that insurer maintain and provide to insured, and provider is not entitled to pre-suit disclosure of log — Error to order that provider is entitled to copy of declarations page and policy information under section 627.4137, which references insurers that provide liability coverage, not PIP coverage — Trial court also erred in finding obligation to provide declarations page and policy information under section 627.7401, which only requires that insured involved in accident with personal injury be sent form adopted by state commission notifying of right to receive PIP benefits — Demand letter — Defects in demand letter did not affect validity of summary judgment in declaratory action where action for benefits was voluntarily dismissed, and appeal does not address action for benefits that requires demand letter — Reversed and remanded
NEW HAMPSHIRE INDEMNITY INSURANCE COMPANY, Appellant, v. RURAL METRO AMBULANCE a/a/o WILLIAM ZANIBONI, Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 04-72-AP. L.T. Case No. 03-SC-5724. July 18, 2005. Final Appeal from the County Court in and for Seminole County, Mark E. Herr, Judge. Counsel: Doreen E. Lasch, Conroy, Simburg, Ganon, Krevans, & Abel, P.A., Hollywood, for Appellant. Rutledge Bradford and Kevin Weiss, Weiss Legal Group, P.A., Maitland, for Appellee.
(Alley, J.) Appellant, New Hampshire Indemnity Insurance Company (“NHI”), timely appealed the County Court’s (1) Order Granting Plaintiff’s Motion for Final Summary Judgment on Its Claim for Declaratory Relief and (2) Order Denying Defendant’s Motion for Rehearing, in a personal injury protection (“PIP”) declaratory action.
On June 9, 2003, Mr. Zaniboni was involved in an automobile accident. Appellee/Plaintiff, Rural Metro Ambulance a/a/o William Zaniboni (“RMA”), after an assignment from Mr. Zaniboni, billed NHI $485.79 for emergency medical care due to injuries sustained in the accident. NHI received RMA’s bill on July 31, 2003. Under F.S. 627.736(4)(b), the bill became overdue on August 30, 2003. RMA sent to NHI a Notice of Intent to Initiate Litigation (demand letter), pursuant to F.S. 627.736(11), and at least two follow-up letters. The follow-up letters from RMA acknowledged NHI’s statement that the insured’s benefits have exhausted and further requested a copy of the PIP pay out log, a copy of the declarations (DEC) page, and a copy of the insured’s policy, citing F.S. 627.4137 and F.S. 627.736(6)(d). NHI did not respond to these requests. RMA sued to determine its rights.
The County Court granted summary judgment as to RMA’s rights under the policy, confirming RMA’s right to receive the PIP log, DEC page, and copy of the insured’s policy. After RMA filed the lawsuit, NHI inadvertently provided RMA with a copy of the PIP log, a copy of the DEC page, and insured’s policy information.
STANDARD OF REVIEW
“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) (citation omitted). Therefore, the standard of review is de novo. Id. Here, there are no disputes as to material facts. The dispute, here, “essentially pertains to a question of law.” Id.
DENIAL OF MOTION FOR REHEARING:DECLARATORY RELIEF
As a preliminary matter, NHI contends that because NHI inadvertently handed over the requested documents, then the issue is moot, and this Court does not have subject matter jurisdiction. This Court rejects that assertion. Even if the issue in this case was moot, “courts are always free to address the merits of an action which has been deemed moot if the action is capable of repetition yet evading review and presents and important issue.” Sterling v. Brevard County, 776 So. 2d 281, 285 (Fla. 5th DCA 2000) (citation omitted). The fact that the same issue recurs in county court cases around the state (particularly in Seminole and Brevard counties), together with the frequency of these insurance information requests, clearly shows that this action involves important issues and are capable of repetition yet evading review. Therefore, this Court has subject matter jurisdiction.
SUMMARY JUDGMENT: PIP LOG,DECLARATIONS PAGE, POLICY INFORMATION
The County Court improperly granted summary judgment to the extent that the court ordered that RMA is entitled to a copy, pre-suit, of the PIP log under F.S. 627.736(6)(d). F.S. 627.736(6)(d) states: “The injured person shall be furnished, upon request, a copy of all information obtained by the insurer under the provisions of this section, and shall pay a reasonable charge, if required by the insurer.” “This section” includes F.S. 627.736(6)(b). F.S. 627.736(6)(b) describes the relevant providers as “[e]very physician, hospital, clinic, or other medical institution providing, before or after bodily injury upon which a claim for [PIP] benefits is based, any products, services, or accommodations in relation to that or any other injury . . . .” A PIP log is undefined anywhere in the statute or case law. It is presumed to be a summary of the paid out benefits for services/products from the providers listed in F.S. 627.736(6)(b). However, there is no requirement that the insurance company maintain such a log. In essence, the providers are attempting to determine what claims have been made and when; if any claims have been paid or denied; if the deductible has been met; and, if not, how much remains. While in a proper assignment, an assignee1 stands in the shoes of the insured and would be entitled to any information that the insured would be entitled to receive, a “PIP log” is not a designated requirement that the insurance company keep and maintain or provide to the insured.
The remaining question may be, if the provider is seeking the information as listed above is what is sought, why then do they not just ask for it. Since there is no provision that requires a PIP log nor defines what it is, the court cannot make such a rule. In essence, the pre-suit information is sought to determine if a suit will be necessary to recover proceeds and assure that coverage is still available. The plaintiff might fear that without the information they would be subject to claims that the suits are frivolous. If such specific information is not available, more suits might be brought to obtain the information which would be exclusively in the hands of the companies. However, this court will not fashion a rule to prevent suits, when the legislature has not spoken.
Further, if such a log existed with the information needed pre-suit disclosure would further the “objective of Florida’s Motor Vehicle No-Fault Law to provide persons injured in an accident with prompt payment of benefits.” Nationwide Mutual Fire Insurance Co. v. Pinnacle Medical, Inc., 753 So. 2d 55 (Fla. 2000). Such a PIP log provides valuable information to a health care provider. It helps the provider determine its relative status among other providers so that it can determine its position with regard to the insured’s deductible or exhaustion of benefits. Requiring insurers to provide the information to assignees of insured, upon proper request, might avoid increased litigation and support sound public policy. However, since the court does not find that this is the law of the land, RMA was not entitled to pre-suit disclosure of the PIP log under F.S. 627.736(6)(d).
Consistently, the County Court erred when it granted summary judgment to the extent that the court ordered that RMA is entitled to a copy of the DEC page and policy information, under F.S. 627.4137 and F.S. 627.7401. Where a statutory provision is clear and not unreasonable or illogical in its operation, the court must construe the words chosen by the legislature in their plain and ordinary meaning and may not give the statute a different meaning. See Taylor Woodrow Const. Corp. v. Burke Co., 606 So. 2d 1154, 1155-56 (Fla. 1992). F.S. 627.4137 does not reference PIP insurance coverage. Rather, F.S. 627.4137 references insurers that do or may provide liability insurance coverage. F.S. 627.4137 states, in part:
(1) Each insurer which does or may provide liability insurance coverage to pay all or a portion of any claim which might be made shall provide, within 30 days of the written request of the claimant, a statement, under oath, of a corporate officer or the insurer’s claims manager or superintendent setting forth the following formation with regard to each known policy of insurance, including excess or umbrella insurance:
(a) The name of the insurer.
(b) The name of each insured.
(c) The limits of the liability coverage.
(d) A statement of any policy or coverage defense which such insurer reasonably believes is available to such insurer at the time of filing such statement.
(e) A copy of the policy.
Thus, it is not proper for an assignee of insured’s rights to use the statute to get PIP insurance coverage/policy information from an insurer. The inference that F.S. 627.4137 allows assignees of an insured to demand copies of PIP policy information and declaration goes against the plain meaning of the statute.
Also, regarding the purpose behind F.S. 627.4137, the Fourth District Court of Appeal noted: “[B]y enacting this statute, the legislature recognized the importance of a [third-party] claimant’s access to this type of information in making settlement decisions.” Cheverie v. Geisser, 783 So. 2d 1115, 1119 (Fla. 4th DCA 2001). While this Court can understand the parallel in reasoning, this Court cannot agree that F.S. 627.4137 should apply to pre-suit requests for PIP insurance declarations pages and policy information, as RMA contended.
Next, this Court does not agree that F.S. 627.7401 provides for required pre-suit disclosure of the declarations page or policy information by the insurer to the assignee of insured’s rights. F.S. 627.7401(1) states that the appropriate State insurance/financial services commission “shall adopt a form for the notification of insured of their right to receive personal injury protection benefits under the Florida Motor Vehicle No-Fault Law.” F.S. 627.7401(2) requires PIP insurers to “mail or deliver the notice as specified in subsection (1) to an insured within 21 days after receiving from the insured notice of an automobile accident or claim involving personal injury . . . .” Thus, F.S. 627.7401 requires that the insured be sent a notification form adopted by the appropriate commission. No where, in this statute, does the legislature refer to the insured’s specific declarations page or policy information. Therefore, F.S. 627.7401 is not applicable to the pre-suit requests made by RMA. (This Court notes that there are no restrictions of note preventing the Legislature from providing such a requirement.)
SUMMARY JUDGMENT: PROPER NOTICEUNDER F.S. 627.736(11)
NHI claims that RMA sent an improper demand letter because the date of accident was inaccurate, requiring a reversal of summary judgment for RMA. This Court rejects that claim. RMA’s action for benefits (Count I) was voluntarily dismissed, without objection, during the litigation. The cause of action at issue, in this Court, is a declaratory relief action (Count II) under F.S. Chapter 86. This appeal does not address the specific action for benefits requiring a demand letter. Generally, RMA is simply seeking to determine its rights to receive certain information2. Therefore, the demand letter did not affect the validity of summary judgment in the declaratory action.
In summary, for the reasons set forth in this opinion, this Court REVERSES the County Court’s granting RMA’s Motion for Summary Judgment in the declaratory action for the PIP log. Also, this Court finds error and REVERSES the County Court in its granting of RMA’s Motion for Summary Judgment as to the required pre-suit disclosure of the declarations page and PIP insurance policy information under F.S. 627.4137 and F.S. 627.7401.
REVERSED and remanded.
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1This Court finds that NHI did not properly preserve the issue of an alleged invalid assignment in the trial court, substantively raising the issue for the first time on appeal. Therefore, NHI waived any such claim.
2As to RMA’s incorrect use of September 9, 2003, instead of June 9, 2003, as a date of accident, NHI made no objections in the record and only raised that issue for the first time on appeal. Therefore, Appellant waived any such objections, if available at that time.
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