13 Fla. L. Weekly Supp. 1236b
Insurance — Personal injury protection — Declaratory judgment — Insurer’s obligation to provide policy, declarations page and/or PIP log on presuit request by medical provider/assignee — Insurer was obligated to provide policy, declarations page and PIP log requested in provider’s demand letter — Postsuit production of documents neither extinguishes dispute or need for declaration nor serves as functional equivalent of confession of judgment
FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, MD, PA as assignee of Daryl Smith, Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-4262. October 5, 2006. John R. Sloop, Judge. Counsel: Michael Mills, Rutledge M. Bradford, P.A., Orlando. George Milev, Adams, Blackwell & Diaco, P.A., Orlando.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON COUNT II
THIS MATTER having come before this Court on Plaintiff’s Motion for Summary Judgment on Count II and this Court being otherwise fully advised in the premises, finds the following:
FACTS
1. This is a claim for PIP benefits arising out of a motor vehicle collision that occurred on or about 7/29/2004.
2. The Plaintiff in this matter, FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, MD, PA as assignee of Daryl Smith, provided emergency medical services to Daryl Smith on 7/29/2004, as a result of the above-referenced automobile accident.
3. Plaintiff submitted its bill for the subject date of service on 10/6/2004, and the subject bill went unpaid.
4. On 11/3/2004, Plaintiff properly sent its 15-Day Notice of Intent to Initiate Litigation to Defendant, which was received by Defendant on 11/5/2004.
5. Included in Plaintiff Demand package was a request for policy information: Declaration of Coverage Page, PIP Log, Policy, and other information pursuant to Section 627.4137 Florida Statute.
6. On or about 11/15/2004, Defendant responded to Plaintiff stating that “the policy was purchased after this loss occurred. There is no EOB available as we have no record of ever receiving bill” from Plaintiff.
7. Defendant did not provide Plaintiff with any documentation regarding the subject policy in response to Plaintiff pre-suit request within the thirty (30) days allowed by the statute.
8. Defendant admits that a policy of insurance was issued to Daryl Smith on 7/29/2004 under policy number 21716256-0.
9. Defendant further admits that the PIP coverage under the subject policy consisted of $10,000.00 with a $250.00 deductible and carried no Medical Payment coverage.
10. Based on the Declaration of coverage page attached to the Deposition of Defendant’s adjuster, Debra Henry, the policy effective period ranged from July 29, 2004 to January 29, 2004.
11. Defendant subsequently rescinded the subject policy of insurance.
12. Defendant had the ability to provide the documents requested pre-suit, but did not. Defendant did, in fact, provide the documents in response to discovery during the course of litigation.
ANALYSIS
The Court is well aware of the multitude of complex issues involving PIP. Exhaustion of benefits and priority of payments continue to be a source of much confusion. Whether a policy provides coverage for a particular loss is also a source of confusion when a plaintiff is not provided with a copy of the declarations page or policy. A plaintiff must be vigilant in ascertaining whether coverage is afforded, whether a policy is in effect on the date of loss, whether a deductible truly applies; whether it has been correctly applied to the bills in the order in which they were received; where its claims rest in relation to other claims submitted; whether benefits remain, and, if so, what bills have been submitted that are entitled to payment.
The nature of litigation in this area is such that a Plaintiff may well end up spinning its wheels needlessly if benefits have in fact been paid out properly and in full, or if the policy does not provide coverage or was not in effect on the date of the loss. In short, the only method of obtaining a verifiable objective answer to these issues is to obtain a PIP payout sheet, declarations page and a copy of the policy in effect. By requesting this information pre-suit, the Plaintiff is attempting to assess whether the filing of a lawsuit is warranted.
In this case, the Plaintiff waited over one month for policy information before resorting to filing suit. The Defendant clearly had the ability to provide this information. Sometimes information relayed by adjusters pre-suit has turned out to be incorrect once suit has been filed and, actual PIP logs and declarations pages are better indicators to determine whether the bills were in fact subject to a deductible; whether benefits have in fact been exhausted; whether the policy was in effect on the date of the loss; and the policy is needed to review the actual language that determines, with respect to coverages, whether the policy contains language that would afford coverage for the claim being asserted by the Plaintiff.
Here Defendant’s post suit production of the documents requested pre-suit neither extinguishes the dispute, controversy, or bona fide need for a declaration by the court nor serves as the functional equivalent of a confession of judgment.
RULING
Accordingly, having heard all the evidence and the argument of counsel, it is hereby,
ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for Summary Judgment on Count II of Plaintiff’s Complaint is Granted, New Hampshire Indemnity Insurance Co. v. Rural Metro Ambulance a/a/o William Zaniboni, Case No. 04-72-AP, 18th Judicial Circuit, Seminole County, Judges Alley, Simmons, and Perry, November 18, 2005. [13 Fla L. Weekly Supp. 573a].
2. This court shall retain jurisdiction with regard to Attorney’s fees and costs. [See 14 Fla. L. Weekly Supp. 1164c.]
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