13 Fla. L. Weekly Supp. 573a
Insurance — Personal injury protection — Declaratory judgment — Insurer’s obligation to provide PIP log on pre-suit request from medical provider — Error to determine that medical provider was entitled to PIP log where no provision of PIP statute dictates that insurer must provide PIP log to insured or assignee or even require that insurer keep PIP log at all — However, because provider has right to information essential to determine its status as claimant, it has right to information that would otherwise be compiled in PIP log, copy of policy and declarations page — Further, as assignee of insured, provider had right to documentation at issue since insured had right to that documentation at any time — Argument that assignment did not specifically authorize release of documentation has been waived by failure to raise issue below — Demand letter — Argument regarding alleged defects in demand letter is rejected where appeal concerns only declaratory relief action, not action for benefits requiring demand letter, and any issue with demand letter would not affect validity of summary judgment in declaratory judgment action — Further, demand letter issue not raised below has been waived — Insurer is equitably estopped from asserting position that unintentional post-suit production of documents renders action moot where insurer’s refusal to produce documents forced provider to seek counsel and file suit — Moreover, court has jurisdiction to address merits of moot action where, as here, action involves important issue capable of repetition yet evading review
NEW HAMPSHIRE INDEMNITY INSURANCE COMPANY, Appellant, vs. RURAL METRO AMBULANCE a/a/o WILLIAM ZANIBONI, Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 04-72-AP. November 18 2005. Final Appeal from the County Court in and for Seminole County, Mark E. Herr, Judge. Counsel: Doreen E. Lasch, for Appellant. Rutledge Bradford and Kevin B. Weiss, for Appellee.
(Before Alley, Simmons, and Perry.)
ON REHEARING [Original Opinion at 12 Fla. L. Weekly Supp. 941a]
On consideration of the Appellee’s Motion for Rehearing the Court withdraws the previous opinion entered on July 18, 2005, and substitutes the following opinion. For the reasons expressed below, the trial court’s decision is hereby affirmed.
On June 9, 2003, William Zaniboni (“Zaniboni”) was involved in an automobile accident which required medical services provided by the Appellee, Rural Metro Ambulance (“RMA”). RMA received an assignment of benefits from Zaniboni and submitted a bill for the services rendered to Appellant, New Hampshire Indemnity Insurance Company (“NHI”). NHI did not pay the bill, which pursuant to section 627.736(4)(b), Florida Statutes became overdue on August 30, 2003. On September 22, 2003, RMA sent to NHI a demand letter pursuant to Section 627.736(11), Florida Statutes, a copy of the assignment of benefits received from Zaniboni, and a letter requesting insurance information related to Zaniboni, including a request for a copy of Zaniboni’s insurance policy, a request for any PIP log, and a copy of the declarations page. The letter from RMA stated that the request for the information was being made pursuant to sections 627.4137 and 627.736(6)(d), Florida Statutes, and further indicated in bold print that the request was being made to “avoid the filing of any unnecessary lawsuit if you have applied this bill to the deductible or you have exhausted benefits.”
NHI received the correspondence from RMA on October 20, 2003, and responded by letter on October 24, 2004. In their response, NHI’s claimed that Zaniboni’s insurance benefits were exhausted. None of the insurance documentation requested by RMA was provided with NHI’s October 24, 2004, response letter. RMA sent out subsequent letters on October 27, 2003, and November 24, 2003, requesting the insurance documentation but received no response from NHI.
RMA filed suit a two count complaint on December 4, 2003, which was subsequently amended on January 8, 2004. Count one of the Amended Complaint alleged breach of contract and sought recovery in the amount of $485.79 for the services provided to Zaniboni by RMA. Count two sought a declaratory judgment from the trial court holding that RMA had a right to a copy of Zaniboni’s insurance policy, Zaniboni’s PIP log, and the declarations page related to the policy. On January 14, 2004, NHI provided some of the requested insurance information including the declarations page to RMA. A letter from NHI confirming this production indicated that NHI had “compl[ied] with all of the requirements set forth under 627.4137. . . .” On January 21, 2004, NHI provided RMA a copy of the PIP log.
After both parties moved for summary judgment, the lower court held a hearing on the matter on May 24, 2004. At the hearing, RMA voluntarily dismissed its breach count as the post-suit production of the documents requested by RMA with its initial demand letter verified that Zaniboni’s benefits had indeed been exhausted. With respect to the declaratory judgment action, RMA argued that it had a right to obtain the requested documentation in order to determine, among other issues, whether benefits had indeed been exhausted. In short, RMA needed to be able to verify insurance coverage and available benefits and not be forced to rely upon NHI’s contention that Zaniboni’s benefits were exhausted standing alone.
NHI responded to RMA’s arguments by agreeing that RMA had a right to the requested documentation; however, because RMA failed to reference the correct statute in its request, section 627.7401, NHI argued that it was not required to produce the requested documentation.1
The lower court rejected NHI’s argument as well as an additional argument asserting that each subsequent RMA request for the same documentation restarted the 30-day window within which NHI was compelled to provide the documentation, thus making the filing of the lawsuit premature. The lower court concluded that “the statutes under which this information was requested are appropriate statutes for the remedy sought.” NHI moved for rehearing of the lower court’s order granting summary judgment to RMA. Rehearing was denied on July 19, 2004, and this appeal ensued.
NHI argues that the trial court erred when it granted summary judgment in favor of RMA despite the fact that no Florida statute specifically compels a PIP insurer to provide the insurance documents requested by RMA in the instant case.2 This Court conditionally agrees with NHI to the extent that the trial court determined that the Florida Statutes require the production of a PIP log. No provision of section 627.736, Florida Statutes, dictates that an insurer must provide a PIP log to an insured, or his/her assignee. In fact, there is no provision under section 627.736, Florida Statutes, which requires that an insurer must create or keep a PIP log at all. Thus, the trial court erred when it determined that RMA was entitled to a copy of the PIP log.
Nevertheless, this finding does not mean that RMA is not entitled to the information that would otherwise be compiled in a PIP log. This Court agrees with RMA that it has a right to determine, pre-suit, what claims have been made and when; if any claims have been paid or denied; whether the deductible has been met; and, if not, how much remains; and whether benefits have truly been exhausted. Whether such information is compiled in a PIP log or some other data compilation format is immaterial. For these same reasons, RMA has a right to a copy of the insurance policy and the declarations page. Although a requirement to provide such information may not be expressly stated in section 627.736, Florida Statutes, this Court finds that the provision of such information is essential to RMA’s ability to determine its status as a claimant and makes eminently good common sense. Furthermore, the Court finds that the provision of such information by an insurer to an insured, or its assignee, is consistent with the purpose of the no-fault statutory scheme, to wit: “to ‘provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.’ ” See Allstate v. Ivey Ins. Co., 774 So. 2d 679, 683-84 (Fla. 2000) (quoting Government Employees Ins. Co. v. Gonzalez, 512 So.2d 269, 271 (Fla. 3d DCA 1987)). To hold otherwise would place providers in the untenable position of having to rely solely upon the explanation of the insurer without corresponding proof.
Moreover, this Court finds that RMA was entitled to the information and documentation requested pursuant to the assignment of benefits received from Zaniboni, which NHI did not contest below. Surely, Zaniboni had a contractual right to receive a copy of his insurance policy and declarations page any time he saw fit. Likewise, Zaniboni was entitled to know what claims had been made and paid; as well as the benefits remaining, if any, at a given point in time. By executing an assignment of benefits, RMA obtained all of the rights and benefits of Zaniboni under the policy including the right to obtain the requested documentation. See State Fire and Cas. Co. v. Ray, 556 So. 2d 811, 812 (Fla. 5th DCA 1990) (citing Fla. Jur.2d, Assignments § 1 (1978) in defining an assignment as “. . . the act by which one person transfers to another, or causes to vest in another, his right of property or interest therein.”). This Court rejects NHI’s attempts to argue for the first time on appeal that the assignment of benefits did not specifically authorize the release of the documentation at issue. Such an argument has been effectively waived by NHI’s failure to raise the issue at the hearing below.
Next this Court rejects NHI’s argument that RMA failed to give proper notice of its intent to initiate litigation as mandated by section 627.736(11), Florida Statutes. The cause of action under review is a declaratory relief action under Chapter 86, Florida Statutes. This appeal does not address the specific action for benefits requiring a demand letter. RMA only seeks to determine its rights to receive certain information/documentation related to Zaniboni’s insurance policy. Accordingly, any issue with the demand letter did not affect the validity of the summary judgment granted in favor of RMA in the declaratory judgment action. Furthermore, any arguments related to the lack of a proper demand have been waived by NHI’s failure to raise the issue below.
Finally, NHI asserts that the lower court erred by denying NHI’s motion for rehearing. NHI’s motion argued that once the documents at the center of this matter were produced to RMA, albeit unintentionally, there was no longer a case or controversy, nor a bona fide need for a declaration from the courts. Thus, the lower court lacked subject matter jurisdiction to grant summary judgment.3
This Court finds that NHI is equitably estopped from asserting such a position. First, NHI was provided ample opportunity to produce the policy information to RMA and avoid litigation altogether. NHI chose instead to take the position that it was not required to produce the information if such information was requested under the wrong statute, thereby forcing RMA to file suit seeking a declaration as to its entitlement. Now NHI attempts to conduct an about-face by arguing that its post-suit provision of the documentation renders this matter moot, despite the fact that RMA has been forced to seek counsel and file suit with its concomitant expenses. This Court will not condone such a tactic by an insurer, particularly where litigation could have been easily avoided had the documents been made available prior to suit. Furthermore, “courts are always free to address the merits of an action which has been deemed moot under circumstances where the action is capable of repetition yet evading review and presents an important issue, Sterling v. Brevard County, 776 So. 2d 281, 285 (Fla. 5th DCA 2000). The instant case presents such a circumstance.
AFFIRMED.
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1In fact, NHI’s attorney indicated that NHI often does provide the requested information in other cases even when requested under statutes which NHI believed to be the wrong statute.
2NHI’s changed its position in this regard from the position it asserted below. At the summary judgment hearing, NHI argued that RMA referenced the wrong statute in making their documentation request.
3The Court notes that the lack of subject matter jurisdiction is an issue which cannot be waived and may be raised at any time. See Tabb ex rel. Tabb v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 880 So. 2d 1253 (Fla. 1st DCA 2004).
