12 Fla. L. Weekly Supp. 235a
Insurance — Personal injury protection — Declaratory judgment — Insurer was obliged to provide declarations page, policy, and payout log upon pre-suit request by medical provider/assignee, and insurer’s post-suit provision of requested information amounts to confession of judgment
RURAL METRO AMBULANCE, INC., as assignee of Alma Ortiz, Plaintiff, vs. U.S. SECURITY INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 03-SC-10948. Division 73 – PIP. December 16, 2004. Wayne Shoemaker, Judge. Counsel: Rutledge M. Bradford, Orlando. Catherine Aebel, Tampa.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENTON ITS CLAIM FOR DECLARATORY RELIEF
THIS MATTER having come before this Court on Plaintiff’s Motion for Final Summary Judgment with respect to its claim for declaratory relief and this Court having heard arguments of counsel and being otherwise fully advised in the premises, finds as follows:
UNDISPUTED FACTS
1. This is a claim for declaratory relief arising out of a motor vehicle collision that occurred on or about 4/24/2003.
2. The Plaintiff in this matter RURAL METRO AMBULANCE, INC., as assignee of Alma Ortiz.
3. On or about 4/24/03, Alma Ortiz was involved in a motor vehicle accident in which she required emergency treatment at the scene by the Plaintiff, Rural Metro Ambulance and transportation to the hospital.
4. The Defendant received the Plaintiff’s bill on May 9, 2003. The bill was not paid.
5. On or about July 28, 2003, the Plaintiff sent the statutorily required Notice of Intent to Initiate Litigation to the designated PIP designee for the Defendant, Roberto Estin at US Security’s designee address in Miami, Florida. The Plaintiff sent with the Notice of Intent to Initiate Treatment a Request for Policy information pursuant to Florida Statutes 627.4137 and 627.736(d), asking for the limits of coverage, a declarations page and a copy of the policy.
6. The Notice was received by the Defendant on or about July 31, 2003. In response to the Demand, the Defendant indicated that the bill had been applied to the deductible.
7. Thereafter, on August 14, 2003, the Plaintiff called faxed the Defendant an additional detailed request for the policy information initially requested in July. The Defendant did not supply the requested declarations page, policy or payout log.
8. Following the filing of this lawsuit, the Defendant provided the requested information.
9. The corporate representative of the Defendant was deposed on January 6, 2004 and confirmed receipt of the demand package by certified mail. She confirmed that the Defendant had not complied with the Plaintiff’s requests, admitted they had done so on other occasions and had no explanation why it had not been done in this situation.
10. The Plaintiff waited an additional two weeks before finally filing its claim for declaratory relief.
ARGUMENT AND ANALYSIS
Beginning with Judge Herring’s opinion in 2001 in Integra Diagnostics a/a/o Shawn Umstead v. Reliance National Indemnity Company, 8 Fla. L. Weekly Supp. 394c (Broward County, March 2001), it is abundantly clear that a Defendant is obligated to provide a policy, declarations page and PIP log within 30 days of its request, or face the consequences of its failure to do so. PIP carrier’s arguments that neither their policies nor any pertinent statute require the provision of this information have been flatly rejected on innumerable occasions. Arguments as to why the information was provided post-suit have been found to be without merit and wholly unpersuasive and was referred to by Judge Herring in Integra as an attempt to bolster the Defendant’s untenable position. As stated by Judge Herring, requiring PIP insurers to provide assignee health care providers with payout logs before the latter file suit makes eminent common, good sense on public policy grounds. Providers can then make informed decisions as to where they stand in relation to other providers vis a vis deductibles, exhaustion issues and priority of payments.
Judge Arnold followed Judge Herring’s decision in ROM Diagnostics a/a/o Rafael Cruz vs. Security National Insurance Company, 9 Fla. L. Weekly Supp. 323b, (Orange County, April 2003) again rejecting the argument that neither contract law nor statute permitted such a request or cause of action. Judge Arnold noted, in granting the request for declaratory relief on its merits, that failure of insurers to provide this information impugns the intent of the No-Fault statute, stating, “To hold otherwise would encourage unnecessary litigation.”
Judge Arnold’s ruling in Cruz was followed by the 11th Judicial Circuit in Miami-Dade county in Cicero Ortho-Med Center, Inc. a/a/o Illiana Munoz vs. United Automobile Insurance Company, 10 Fla. L. Weekly Supp. 436c (April 2003). The court ruled that a declaratory judgment was a valid cause of action when a Plaintiff requested a PIP log pre-suit and the carrier failed to provide it. The court sited at length from Judge Herring’s decision.
Although Judge Arnold ruled in Dynamic Imaging MRI Center, Inc. a/a/o Tahnee Doyle vs. Nationwide Assurance Company, 10 Fla. L. Weekly Supp. 1021b (Orange County, September 2003), that the request had not been made under the proper statute, subsequent thereto, in Physical Medicine Group a/a/o Vivian Nieves vs. Allstate Insurance Company (CCO-02-14858) [12 Fla. L. Weekly Supp. 77a] judge Arnold addressed his previous opinion and ruled that the Defendant was required to provide the requested information, which had been requested under the identical statutes as in Doyle. Thereafter, Judge Cheek also considered these line of cases and the Doyle case and ruled consistently with Judge Herring’s opinion in Integra and Judge Arnold’s opinions in ROM and Nieves. In RMA a/a/o Aletha Bryant vs. Liberty Mutual Insurance Company, 11 Fla. L. Weekly Supp. 583a (Orange County, April 2004), Judge Cheek granted the Plaintiff’s Motion for Summary Judgment, finding the Plaintiff was entitled to the policy, pip payout and declarations page pre-suit and the Defendant’s failure to provide it created an issue suitable for declaratory relief.
Additionally, Judge Herr in Seminole County considered this matter in Rural Metro Ambulance a/a/o William Zaniboni vs. New Hampshire Indemnity Insurance Company, 11 Fla. L. Weekly Supp. 75a (Seminole County, June 2004). In Zaniboni, the Defendant made the same argument as had been made in Doyle. The court considered all the case law on this issue, including Doyle and rejected the Defendant’s arguments and granted the Plaintiff’s Motion for Summary Judgment.
Finally, in Palm Beach Regional MRI, Inc. a/a/o Cynthia Jackman vs. Southern Group Indemnity, Inc., 11 Fla. L. Weekly Supp. 742a (Palm Beach County June 2004) Judge Marx likewise followed Judge Arnold’s holding in Cruz finding that declaratory relief was the proper remedy and the Defendant’s conduct in belatedly furnishing the information post suit after refusing to honor a pre-suit request amounted to a confession of judgment.
The Defendant argues that this matter is distinguishable from the long line of cases presented by the Plaintiff, asserting that those cases involved a confession after suit was filed. This matter involves a confession after suit was filed and therefore, the court finds no distinction. The court notes that even if the Defendant had not provided the requested information after suit was filed, the result would be the same and the Plaintiff would be entitled to Summary Judgment on the merits. The courts addressing this issue have made it clear that after ignoring a pre-suit request, whether the carrier provides the requested information post suit is not the decisive issue, but rather whether the Defendant has a legal obligation under the law to comply with the pre-suit request by Plaintiff. The courts have held consistently that the Defendant does have a legal obligation to provide this information pre-suit and failure to do so entitles the Plaintiff to a judgment on the merits.
The court finds ample support that the statutes under which this information was requested are appropriate statutes for the remedy sought. Further, the Plaintiff itemized specifically each item of information it was seeking, giving the Defendant a clear opportunity to comply with the request pre-suit and avoid exposure to attorney’s fees. Therefore, it is
ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for Final Summary Judgment is GRANTED.
2. The court was made aware of and did consider Dynamic Imaging MRI Center, Inc. Tahnee D. Doyle v. Nationwide Assurance Company, 10 Fla. L. Weekly Supp. 1021b (County Court Orange County Sept 2003). However the court finds more persuasive the subsequent decisions out of Orange County in the cases of Rural Metro Ambulance a/a/o Aletha Bryant vs. Liberty Mutual Insurance Company, case number CCO-02-14858 [11 Fla. L. Weekly Supp. 583a] and Physical Medicine Group a/a/o Vivian Nieves vs. Allstate Insurance Company, case number 03-SC-13018 [12 Fla. L. Weekly Supp. 77a].
3. The court reserves jurisdiction for the taxation of costs and fees as may be appropriate.
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