13 Fla. L. Weekly Supp. 1234b

Insurance — Personal injury protection — Declaratory judgment — Insurer’s obligation to provide policy, declarations page and/or PIP log on presuit request from medical provider/assignee — Entry of summary judgment against insurer that failed to provide PIP log requested by provider presuit

FLORIDA ORTHOPAEDIC CENTER, P.A., as assignee of Ivy Johnson, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 06-06360 COCE 54. September 13, 2006. Lisa Trachman, Judge. Counsel: Cris Evan Boyar, Boyar and Freeman, Margate, for Plaintiff. Rodney McLellan, for Defendant.

FINAL DECLARATORY JUDGMENT

THIS CAUSE came before the Court on September 13, 2006, on Plaintiff’s Motion for Summary Judgment, and the Court having reviewed the evidence, heard argument of counsel and has otherwise been duly advised, the Court finds as follows:

Background. On 5/2/06, the Plaintiff, pursuant to an assignment of benefits which was attached to the complaint, filed suit for breach of contract for failing to pay for medical treatment, breach of contract for failing to provide the Plaintiff with a PIP payout sheet and for declaratory relief. The Plaintiff alleges it submitted a presuit demand letter upon the Defendant specifically asking for, among other things, a copy of the un-redacted PIP payout sheet. This document was requested because the Defendant responded to the Plaintiff’s bill claiming the policy of insurance was exhausted. The request for the PIP payout sheet was in bold and clearly legible. The demand letter attached to the affidavit specifically stated “According to the patient she did not spend the night at the hospital so we do not know how it is possible the policy of insurance is exhausted. This is why we need the PIP payout sheet! The provider has requested the PIP payout sheet numerous times but United has not provided it.” The Defendant did not file any affidavits disputing it received this demand letter.

After suit was filed the Defendant provided the Plaintiff a PIP payout sheet and a copy of the check to the hospital confirming the exhaustion defense. The Plaintiff now seeks an order of the Court finding the Defendant confessed judgment and that the Plaintiff is entitled to attorney’s fees and costs pursuant to F.S. §627.428 as a result of the Defendant’s failure to provide the Plaintiff with a PIP log or with any and all information obtained under the provisions of Fla. Stat. §627.736 as required by the provisions of §627.736(6)(d).

Conclusions of law. The Court finds the Defendant was obligated to provide the Plaintiff with a PIP log or other information that would be otherwise compiled in a PIP log. See Jablon v. United Auto, 13 Fla. L. Weekly Supp. 643c (Fla. Broward Cty. Court 2006); New Hampshire Indemnity Ins. Co. v. Rural Metro Ambulance, Appellate Opinion on Rehearing, Case No. 04-72-AP (18th Cir. Ct. 2005) [12 Fla. L. Weekly Supp. 1145b]. See also Cicero Ortho-Med Center, Inc. v. United Automobile Ins. Co., 10 Fla. L. Weekly Supp. 436 (Miami-Dade Cty. Ct. 2003); ROM Diagnostics v. Security Nat’l Ins. Co., 9 Fla. L. Weekly Supp. 323 (Orange Cty. Ct. 2002); Integra Diagnostics v. Reliance Nat’l Indemnity Company, 8 Fla. L. Weekly Supp. 394 (Broward Cty. Ct. 2001).

The Court finds the Plaintiff was entitled to file suit for declaratory relief demanding the PIP payout log. See ROM Diagnostics v. Superior, 9 Fla. L. Weekly Supp. 323 (Fla. Orlando Cty. Court 2002). See also Cicero Ortho-Med Center v. United, 10 Fla. L. Weekly Supp. 436 (Fla. Dade Cty. Court 2003); Palm Beach Regional MRI v. Southern Indemnity, 11 Fla. L. Weekly Supp. 742 (Fla. Palm Beach Cty. Court 2004); Integra Diagnostics v. Reliance National Indemnity Co., 8 Fla. L. Weekly Supp. 394 (Fla. Broward Cty. Court 2001, Herring); Rural Metro Ambulance v. U.S. Security, 12 Fla. L. Weekly Supp. 235 (Fla. Orange County Court2005); Florida Emergency v. Progressive, 12 Fla. L. Weekly Supp. 805 (Fla. Seminole Cty. Court 2005); Greater Chiro v. Alpha Property, 13 Fla. L. Weekly Supp. 352 (Fla. Orange Cty. Court 2006); The Stand Up MRI v. OMHI Insurance Co., 13 Fla. L. Weekly Supp. 396 (Fla. Seminole Cty. Court 2006); New Hampshire Indemnity v. Zaniboni, 13 Fla. L. Weekly Supp. 573 (Fla. 18th Cir. Court 2006); Jablon v. United, 13 Fla. L. Weekly Supp. 643 (Fla. Broward Cty. Court 2006, Judge Lee); Leesburg Chiropractic v. Progressive, 13 Fla. L. Weekly Supp. 841 (Fla. Seminole Cty. Court 2006) (insurer is obligated to produce policy, declaration page and/or PIP log on presuit request when provider has an AOB. Supplying after suit is a confession of judgment); Florida Emergency Physicians v. United, 13 Fla. L. Weekly Supp. 350b (Fla. Orange County Court 2005 ) (provider gets fee for obtaining a PIP log); Florida Emergency Physicians v. American Vehicle Insurance, 12 Fla. L. Weekly Supp. 478b (Fla. 9th Cir. Court 2005); Open MRI v. United, 13 Fla. L. Weekly Supp. 908 (Fla. Broward Cty. Court 2006, Judge Deluca); Florida Emergency Physicians v. United Insurance, 13 Fla. L. Weekly Supp. 92 (Fla. Orange County Court 2005).

Further, the Court finds it was reasonable under the facts of this case for the patient and the provider to want to view the PIP log which would explain how the policy of insurance could be exhausted. According to the demand letter, the patient informed the provider she did not spend the night in the hospital. The Plaintiff was entitled to know how the policy of insurance could be exhausted after a few hours in the hospital. The Plaintiff, according to the demand letter, requested the PIP payout log on numerous occasions and the Defendant never responded.

The Court finds the Defendant has confessed judgment entitling the Plaintiff to reasonable attorney fees pursuant to §627.428. This finding is based on the Defendant’s wrongful and dilatory conduct of refusing to provide the Plaintiff with a PIP log or any documents explaining how the policy of insurance was exhausted after being requested. Then, after being sued for this specific information, providing the Plaintiff with a copy of the PIP pay out log and a copy of the endorsed check. Leesburg Chiropractic v. Progressive, 13 Fla. L. Weekly Supp. 841 (Fla. Seminole Cty. Court 2006); Palm Beach Regional MRI v. Southern Indemnity, 11 Fla. L. Weekly Supp. 742 (Fla. Palm Beach Cty. Court 2004). The Defendant could have avoided this litigation by providing the Plaintiff with the requested information. The Plaintiff is ordered to schedule fee hearing as to the amount of fees.

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