12 Fla. L. Weekly Supp. 993b
Insurance — Personal injury protection — Declaratory action — Insurer’s obligation to provide declarations page and PIP log on pre-suit request from medical provider — Section 627.4137 does not create private cause of action to recover copy of declarations page or PIP log as statute applies to liability insurers only — Section 627.7401 creates basis for Department of Insurance to promulgate rules, but does not create private cause of action to recover documents sought from insurer — PIP statute which does not even define PIP log does not create basis for recovery of PIP log or declarations page
PREZIOSI WEST/EAST ORLANDO CHIROPRACTIC CLINIC, P.A., a/a/o RUBEN RIVERA, Plaintiff, v. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-3189. July 28, 2005. John R. Sloop, Judge. Counsel: Michael Tierney, Winter Park. Aaron E. Leviten, Orlando.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE having come before this Court on Defendant’s Motion for Final Summary Judgment and the Court having heard argument of counsel and being otherwise fully advised rules as follows:
FINDING OF FACTS
1. This is a claim for PIP benefits arising out of a motor vehicle accident that occurred on or about February 16, 2004.
2. After the accident described in Plaintiff’s complaint, Ruben Rivera sought medical treatment from Preziosi West East Orlando Chiropractic Clinic, P.A., and executed an assignment of benefits for services on behalf of Preziosi West/East Orlando Chiropractic Clinic, P.A.
3. After providing treatment to Ruben Rivera, Preziosi West/East Orlando Chiropractic Clinic, P.A., submitted bills for medical services it provided dated February 18, 2004 through March 12, 2004.
4. On July 13, 2004 Defendant received Plaintiff’s demand letter pursuant to Florida Statute 627.736(11) as well as a letter requesting a copy of the declarations page and PIP payout log for Ruben Rivera pursuant to Florida Statute 627.736(6)(d), 627.4137 and 627.7401.
5. On July 24, 2004 Mercury Insurance Company sent a letter and checks for payment for the dates of service February 18, 2004 through March 12, 2004. As indicated in the letter dated July 24, 2004, Defendant paid all outstanding benefits plus postage, penalty and interest except for a portion of the bill applied to Rubin Rivera’s deductible. Defendant did not send a copy of the PIP log or declarations page to Plaintiff as a result of the request made by Plaintiff.
6. On or about August 27, 2004 Plaintiff filed an action for breach of contract as well as an action for declaratory relief regarding production of the declarations page for the policy issued to Ruben Rivera by Mercury Insurance Company.
7. During the course of litigation in this case Plaintiff withdrew Count I of its complaint, breach of contract and has admitted that in part the benefits at issue were paid while a portion was applied to Ruben Rivera’s deductible. On December 9, 2004 the Defendant’s counsel provided a copy of the PIP log in the above-referenced case to confirm payment of benefits and application of the deductible applied to Ruben Rivera’s medical services. The PIP log was not subject to the declaratory judgment action brought by Plaintiff.
Based upon the foregoing facts and application of Florida law and based on argument of counsel it is therefore
ORDERED and ADJUDGED that
1. Defendant’s Motion for Final Summary Judgment is hereby GRANTED on its merits.
2. As a matter of law, the plain language of Florida Statutes 627.736(6)(d), 627.4137 and 627.7401 do not create a private cause of action for which Plaintiff may seek a declaratory judgment action to recover a copy of the declarations page or a PIP log from the insurer, New Hampshire Indemnity Insurance Company v. Rural Metro Ambulance, Case No. 04-72-AP, (Fla. 18th Cir. Ct., July 7, 2005).
3. Pursuant to the language specifically found in Florida Statute 627.4137, the statute refers directly to liability insurance coverage and not to PIP or No-Fault coverage. The Court finds persuasive the decisions in Union General Insurance Company v. Lorenzo, 598 So.2d 161 (Fla. 3rd DCA 1992) State Farm Mutual Automobile Insurance Company v. Sternberg, 699 So.2d 345 (Fla. 5th DCA 1997), holding that the clear language of section 627.4137 applies to “liability insurer’s” only. The statute does not address first party PIP claims and therefore noncompliance with section 627.4137 does not apply of any bearing on first party PIP claims, New Hampshire Indemnity Insurance Company v. Rural Metro Ambulance, Case No. 04-72-AP, (Fla. 18th Cir. Ct., July 7, 2005).
4. This Court further holds that Florida Statute section 627.7401, creates a basis for promulgating rules with the Department of Insurance and does not create a private cause of action for which Plaintiff can recover any documents sought in Plaintiff’s Complaint, Plantation General Hospital Limited Partnership v. Horowitz, 895 So.2d 494 (Fla. 4th DCA 2005) and Holley v. Auld, 450 So.2d 217, 129 (Fla. 1984). Based on these decisions, the Court declines to infer any civil liability as there is no evidence in the language or legislative history of Florida Statute 627.7401 creating a private cause of action against an insurer for recovery of documents identified in that statute.
5. Plaintiff seeks Defendant’s “pip log” which together with a copy of the insured’s policy and declarations page, will allow Plaintiff to reach its own conclusion regarding the validity of its claim. Florida Statutes neither defines “pip log” nor delineates its content. The term is applied throughout the insurance industry to a wide array of auditing tools ranging from a simple compilation of checks disbursed, to a detailed analysis of all claims made, including the date(s) received, amount(s) claimed, amount(s) and date(s) paid, and explanations of benefits for every claim denied, reduced or pending. This Court hopes the legislature consider the latter should it amend Chapter 627 to require production of an insured’s policy, declarations page and a pip log to the health care provider upon demand. However, at present, the Florida PIP statute does not create a basis for recovery of the documents sought in Plaintiff’s complaint pursuant to Florida Statute 627.736(6)(d). Read in its entirety, Florida Statutes section 627.736(6)(d) provides a number of documents which an insurer may recover as part of its discovery of facts regarding an injured person. Pursuant to subsection (6)(d), the injured person shall be furnished a copy of all information obtained by the insurer under the provisions of this section of the statute. However, subsections (6)(a)(b) and (c) do not provide a basis for recovery of documents as alleged by Plaintiff in its complaint.
6. The Court in granting Defendant’s Motion for Final Summary Judgment denies Plaintiff’s claims for attorney’s fees and costs and shall take nothing by this action and Defendant shall go hence without day.
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