13 Fla. L. Weekly Supp. 352b
Insurance — Personal injury protection — Declaratory action — Insurer’s obligation to provide PIP log, declarations page and policy on pre-suit request from medical provider — Where insurer has not proffered any reason why it did not respond to medical provider’s pre-suit demand for policy information, court grants provider’s motion for summary judgment and finds as matter of law that provider is entitled to PIP log, declarations page and policy — Court rejects arguments that statute requiring provision of policy information applies only to claims involving liability issues and that small claims court lacks subject matter jurisdiction over claims brought in equity
GREATER CHIROPRACTIC CENTER CORP as assignee of Gurvinder Gandhi, Plaintiff, vs. ALPHA PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 05-SC-3559. November 4, 2005. Jerry L. Brewer, Judge. Counsel: Rutledge M. Bradford, Rutledge Bradford, Orlando. Brian Forman, Maitland.
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT ON ITS CLAIM FOR DECLARATORY RELIEF
THIS MATTER having come before this Court on Plaintiff’s Motion for Final Summary Judgment on Count II of Plaintiff’s Complaint (claim for declaratory relief) and this Court having heard arguments of counsel and being otherwise fully advised in the premises, notes the following:
UNDISPUTED FACTS
1. This is a claim for declaratory relief arising out of a motor vehicle collision that occurred on or about 9/26/2002.
2. The Plaintiff in this matter is GREATER CHIROPRACTIC CENTER CORP as assignee of Gurvinder Gandhi.
3. In October, November and December, 2002, the Plaintiff submitted its bills for care and treatment of the insured to the Defendant and the bills went unpaid.
4. Thereafter, on June 28, 2004, A Notice of Intent to Initiate Litigation was sent to the Defendant’s designated “designee” pursuant to Florida law and was signed for by the Defendant on July 6, 2004. Included in the Notice package was a request for a copy of the policy, declarations page and PIP log, as provided for in Florida statutes.
5. The Defendant responded by acknowledging the demand and indicating that they were unable to honor the request for payment as a previous suit had been dismissed. There was no acknowledgment or response to the request for a copy of the PIP Log, declarations page or policy.
6. The Plaintiff waited several additional weeks, but was left it in doubt as to whether there were benefits remaining, whether there was a deductible applicable and/or whether the policy paid at 100% or 80%, as the Defendant refused to provide the information required by Florida statutes.
7. The Defendant’s failure to comply with Florida statutes regarding a request for policy information pre-suit necessitated the filing of this lawsuit.
ANALYSIS OF THE LAW
The overwhelming majority of all county court judges who have heard this argument have ruled that a defendant is obligated to provide a Policy, declarations page and PIP log to a health care provider who requests it pre-suit. The court rejects the Defendant’s argument that (1) the statutory authority relied upon by the Plaintiff’s in seeking this information only applies to claims involving liability issues. There is no reasonable or practical distinction that can be made between seeking insurance information from a liability carrier, a PIP carrier or a UM carrier. Each, is a liability carrier for purposes of the coverage being sought. The intent and purpose is exactly the same. Additionally, the Plaintiff, without this information, will certainly be faced with a 57.105 motion for filing a breach of contract action if their claim involves a policy that has exhausted benefits or was applied to a deductible. There is no reasonable way for a Plaintiff to make a good faith decision to file suit on a breach of contract claim, if they cannot obtain a copy of the PIP log; declarations page and policy.
It is appropriate to bring alternative causes of action and the filing of a claim for breach of contract and a claim for declaratory relief in the same action is both permissible and warranted in these scenarios.
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. A plaintiff must be vigilant in ascertaining 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.
In Integra Diagnostics v. Reliance National Indemnity (Fla. Broward County, 2001), Judge Herring ruled that a Defendant’s conduct in belatedly furnishing a PIP payout sheet post suit, after refusing to honor a pre-suit request for the document amounted to a confession of judgment, entitling the Plaintiff to attorney’s fees. The Plaintiff had requested a PIP log pre-suit, the Defendant denied the request, the Plaintiff filed a declaratory judgment action and the Defendant thereafter provided a log, showing the bill had been applied to the deductible.
The Defendant made the same argument that neither the policy nor any pertinent statute required an insurer to provide its insured or a provider with a PIP sheet. The court ruled that the Defendant was “equitably estopped from taking such a materially inconsistent position”. The Defendant’s provision of the log after suit was accompanied by a letter indicating that there had been a mistaken impression that an authorization was required. The Defendant’s assertion that the information was provided as a “courtesy” was found to be without merit. The court went on, “the Defendant’s assertions are wholly unpersuasive, as the attempted analogy is illusory in the effort to bolster the Defendant’s untenable position”.
The Plaintiff’s claim for declaratory relief was granted on the merits, on the basis that it made eminent common good sense on public policy grounds. Again, the court reserved jurisdiction for the assessment of attorney’s fees.
In ROM Diagnostics v. Security National Insurance Company, 9 Fla. L. Weekly Supp. 323b (Fla. Orange County 2002), the county court in Orange County (Judge Arnold presiding), addressed this situation. In ROM, the Plaintiff submitted billing to the Defendant and was advised the bill would not be paid, as it had been applied to the insured’s deductible. The Plaintiff in response, submitted a written request to the Defendant to provide them with a copy of a PIP log so that it could verify what it was being told. The Defendant refused to provide the information and the Plaintiff filed suit, seeking declaratory relief regarding its right of access to the PIP log. After suit was filed, the Defendant provided the information and argued the suit was moot and demanded the Plaintiff dismiss its claim. The Defendant argued that neither contract law nor statute permitted the Plaintiff to bring such a claim. The Plaintiff argued that 627.736(6)(d); 627.7401 and 627.4137 required production of the requested information to an individual or provider.
The court granted the Plaintiffs declaratory relief on its merits, stating, “failure of insurers to recognize and comply with proper assignments only serve to increase litigation and thwart public policy, as well as to impugn the intent of the No-Fault statute. When a health care provider is provided a PIP log pre-suit, this allows them to know their respective position as it relates to the insured’s deductible. To hold otherwise would encourage unnecessary litigation and potentially subject the provider to sanctions pursuant to Fla. Stat. 57.105(1).” The court went on, “Plaintiff properly sought declaratory relief on the issue of whether the Defendant insurer is required on a pre-suit request from a health care provider to produce a current PIP log to the provider . . .” and reserved jurisdiction to award attorney’s fees.
The Fourth District’s opinion in United Automobile Insurance Company v. Rousseau, 21 Fla. L. Weekly D2477a (Fla. DCA 1996) is the only circuit court opinion on the matter. The case involved a UM claim, also a first party claim like a PIP claim. There, the Plaintiff didn’t have a copy of the policy, repeatedly requested a copy of the policy and the Defendant failed to provide it. Fees were granted to the Plaintiff.
Additionally, the county court in Broward County recently held in Tallahassee MRI, P.A. v. Progressive Auto Pro Insurance Company, 11 Fla. L. Weekly Supp. 69 (2003) that because there is a legitimate dispute as to the interpretation of this Statute § 627.736(6)(d), the Court finds that the Count for declaratory judgment is an appropriate vehicle for resolving the same. Most recently, Judges Arnold, Cheek and Shoemaker in Orange County and Judge Herr in Seminole County have each granted Plaintiff’s Motion for Summary Judgment on this very issue. See Rural Metro Ambulance a/a/o Aletha Bryant vs. Liberty Mutual, 11 Fla. L. Weekly Supp. 583, 568 (2004); Physical Medicine Group a/a/o Vivian Nieves vs. Allstate Insurance Company; Rural Metro Ambulance a/a/o William Zaniboni vs. AIG Insurance; Rural Metro Ambulance a/a/o Sandra Davila vs. Lincoln General Insurance Company; Rural Metro Ambulance a/a/o Shayla Dunlap vs. Lincoln General Insurance Company; Rural Metro Ambulance a/a/o Alma Ortiz vs. U.S. Security; Rural Metro Ambulance a/a/o Frank Cipris vs. State Farm Insurance Company; Florida Emergency Physicians a/a/o Stephanie Carrico vs. American Vehicle Insurance Company; Florida Emergency Physicians a/a/o William Eve vs. American Vehicle Insurance Company; Florida Emergency Physicians a/a/o Vinton Brown vs. Nationwide Insurance Company.
Recently, the 18th Judicial Circuit sitting in its Appellate capacity, reversed the trial court’s order dismissing a Plaintiff’s claim for declaratory relief. Louis Curren, Sr. vs. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 1053a 18th Judicial Circuit (Appellate), 2004. Clearly, the cause of action exists and the Defendant’s failure to comply with pre-suit requests exposes it to judgment and fees if litigation is initiated.
The court is aware of the circuit court opinion issued in United Automobile Insurance Company vs. Rural Metro Ambulance a/a/o Zaniboni and the fact that a rehearing before a three judge panel has been ordered. The court has read that opinion and does not find it persuasive.
The court also rejects the Defendant’s argument that small claims court lacks subject matter jurisdiction over claims brought in equity. Florida’s Supreme Court pronounced both county and circuit courts of having jurisdiction over claims in equity. Further, the county court invoked the rules of civil procedure in this matter, further eliminating any potential distinction. The court does indeed have jurisdiction to hear this matter.
WHEREFORE, IT IS ORDERED AND ADJUDGED:
1. The court has jurisdiction of this matter, pursuant to Chapter 86, Florida Statutes.
2. The Defendant has not offered or proffered any reason why it did not respond to the pre-suit demand for policy information.
3. The court GRANTS the Plaintiff’s Motion for Summary Judgment and finds as a matter of law the Plaintiff is entitled to a PIP log; declarations page and Policy.
4. The court reserves jurisdiction on entitlement and amount of fees.
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