13 Fla. L. Weekly Supp. 1156a

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 refused prior to suit to supply PIP log to support its representation that payment was not due since it had been applied to deductible

SOUTHERN GROUP INDEMNITY, INC., Appellant, v. HUMANITARY HEALTH CARE, INC., As assignee of Martha Lopez, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-257 AP. L.C. Case No. 03-22202 SP 05 (01). August 25, 2006. An Appeal from the County Court for Miami-Dade County, Kravitz, Shelly J. Counsel: Albert E. Moon and David B. Pakula, for Appellant. Stuart B. Yanofsky, for Appellee.

(Before COHEN, BARZEE and JIMENEZ, JJ.)

QUASHED. 33 Fla. L. Weekly D752a

(PER CURIAM.) Appellant, Southern Group Indemnity, Inc. (“SGI”) appeals an Order Granting Partial Summary Judgment in favor of Appellee, Humanitary Health Care (“HHC”) as assignee of Martha Lopez.

Martha Lopez was involved in an automobile accident on July 28, 2003, that resulted in bodily injury. Ms. Lopez had personal injury protection benefits (PIP) provided by SGI. As a result of the accident, Ms. Lopez sought treatment from HHC, a health care provider. She executed an assignment of her benefits to HHC.

As assignee of Martha Lopez, HHC gave notice of covered losses to SGI and requested payment and various documents pursuant to Florida Statute, § 627.736(6)(d).¹ Among the documents requested was a PIP payout log (“PIP log”). Payout logs disclose the order in which bills are received and how the deductible is applied to each bill.

SGI responded to HHC’s request by informing HHC that payment was not due since it had been applied to the deductible. SGI refused to provide HHC with a PIP log to support its representation. As a result, HHC filed a two count complaint in county court for breach of contract and requesting a declaratory judgment that HHC, as the assignee of an insured, is entitled pre-suit to a copy of the PIP log pursuant to §627.736(6)(d), Fla. Stat.

After suit was filed, SGI filed a response to HHC’s request to produce objecting to the production of the PIP log on the grounds of work product, but providing it nonetheless. The PIP log indicated, as SGI had maintained, that HHC was the first bill to be submitted and that the deductible was applied to that account. HHC then moved for partial summary judgment on the Declaratory Judgment count claiming that the production of the PIP log provided HHC with the relief it sought prior to filing suit and was tantamount to a confession of judgment entitling HHC to attorney’s fees. The trial court entered its Order Granting Plaintiff’s Motion for Partial Summary Judgment. This appeal followed.

On appeal, SGI does not raise any work product privilege defense or contest HHC’s claim that the provisions of the PIP log gave HHC the relief it sought. Rather, SGI argues that a literal reading of §627.736(6)(d), does not require insurance companies to provide its PIP logs to assignee/health care providers. SGI argues that if the legislature wanted to make mandatory the provision of the PIP logs pre-litigation, then it would have explicitly referenced the PIP log in the PIP statute. Moreover, SGI argued that if HHC is successful in obtaining attorney’s fees, assignees will be encouraged to file similar lawsuits whereby they can collect attorney’s fees even if they are unsuccessful on their breach of contract claims.

The standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000); Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000).

The PIP statute is designed to provide speedy, uncomplicated resolution of issues between insurance companies and their insured/assignees. While there are no appellate opinions in Florida specifically addressing the question at bar, it is well settled the PIP laws are outcome oriented and designed to level the playing field between insureds and insurance companies. Ivey v. Allstate Insurance Company, 774 So. 2d 679, 683 (Fla. 2000).

Numerous County Courts,² which preside over hundreds of PIP cases every year, have written extensively on this issue. Most of those courts have sided with the trial court in this case and found that §627.736(6)(d), in keeping with the spirit of the PIP statute, requires the pre-litigation production of the PIP log to an assignee if requested. In the event an assignee is forced to file a lawsuit because of an insurance company’s pre-litigation refusal to provide the log, a post-litigation production of the document is tantamount to a confession of judgment.

The principal underlying the rulings of the majority of the courts is perhaps best expressed by Judge Herring of the County Court in and for the 17th Judicial Circuit, Broward County, Florida:

Requiring PIP insurers to provide assignee health care providers with payout logs before the latter files suit makes eminent common, good sense on public policy grounds. Providers, armed with the information provided by the payout sheets can make informed decisions as to where they stand in relation to other providers vis-à-vis satisfaction of the deductible. Frivolous, unnecessary litigation may thus be avoided. To rule otherwise would be to place a provider in the untenable, ‘Catch-22′ position of having to sue when it is in the dark, and then being faced with exposure for the imposition of Section 57.105(1), Fla. Stat., attorney’s fees when it learns that the deductible wholly consumed its bills. Integra Diagnostics (a/a/a Shawn Umstead) v. Reliance National Indemnity Company, 8 Fla. L. Weekly Supp. 394c (Broward County, March, 2001.)

Judge Jeffrey Arnold, of the County Court, 9th Judicial Circuit in and for Orange County, has similarly ruled:

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.

[T]he health care provider is also entitled to a pip-log so that the provider may also verify that their bill was correctly applied, or, if applicable, properly paid under an apportionment of satisfying the remaining portion of the deductible which their bill satisfied. Rom Diagnostics (a/a/o Rafael Cruz) v. Security National Insurance Company, 9 Fla. L. Weekly Supp. 323b (Orange County, March 2002).

While §627.736(6)(d) does not specifically identify the PIP log as a document that must be produced by an insurer pre-suit, it is the opinion of this, and numerous other courts, that the statutory language is broad enough to encompass the PIP log. A single provider assignee may have no other means of gleaning such information from any other source but the PIP log. The assignee would likely not be privy to the identity of any other provider who may have provided service to the insured and submitted claims prior or subsequent to the assignee’s own claim. Assignees should not be forced to rely on the representations of insurance companies without accompanying documentation.

Accordingly, in complying with the spirit and intent of the PIP statute, insurers should provide PIP logs to assignees of the insured, who request those logs pre-litigation, in order to avoid frivolous litigation and simplify the PIP process.

The Trial Court’s order is, hereby, Affirmed.

__________________

¹§627.736(6)(d) provides:

The injured person shall be furnished, upon request, a copy of all information obtained by the insurer under the provisions of this section, and shall pay a reasonable charge, if required by the insurer.

²Cicero Ortho-Med Center, Inc., (a/a/o Ileana Munoz) v. United Automobile Insurance Co., 10 Fla. L. Weekly Supp. 436c (Miami-Dade County, April 2003) (Declaratory judgment is valid cause of action when pre-suit PIP log request not provided); RMA a/a/o Aletha Bryant v. Liberty Mutual Insurance Company, 11 Fla. L. Weekly Supp. 583a (Orange County, April 2004); Rural Metro Ambulance, Inc., a/a/o Alma Ortiz v. U.S. Security Insurance Company, 12 Fla. L. Weekly Supp. 235a (Orange County, December 2004); Louis Curren, Sr. v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 1053a (Seminole County, August 2004); Florida Emergency Physicians Kang & Associates, MD, PA, a/a/o Stephanie Carrico v. American Vehicle Insurance Company, 12 Fla. L. Weekly Supp. 478b (Orange County, February 2005) (The Court finds that a Defendant, upon proper request, is required to furnish, pre-suit, a copy of the patient’s declarations page, policy, and/or PIP log in accordance with Florida Statutes 627.4137, 627.736(6)(d) (sic) and 627.7401.); Florida Emergency Physicians Kang & Associates, MD, PA a/a/o Dean Walker v. Nationwide Mutual Fire Insurance Company, 12 Fla. L. Weekly Supp. 592a (Seminole County, March 2005); Preziosi West/East Orlando Chiropractic Clinic, P.A. a/a/o Ruben Rivera v. Mercury Insurance Company of Florida, 12 Fla. L. Weekly Supp. 993b (Seminole County, July 2005); Greater Chiropractic Center Corp. a/a/o Gurvinder Ghandi v. Alpha Property & Casualty Insurance Company, 13 Fla. L. Weekly Supp. 352b (Orange County, November 2005); Scott M. Jablon, D.C. a/a/o Lutz Glindmeier v. United Automobile Insurance Company, 13 Fla. L. Weekly Supp. 643c (Broward County, March 2006); and Florida Emergency Physicians Kang & Associates, MD, PA a/a/o Camille Davila v. Geico Casualty Company, 13 Fla. L. Weekly Supp. 737a (Seminole County, April 2006). But see Asclepius Medical, Inc., et al. v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 87a (Miami-Dade County. October, 2004); Diagnostic Medical Center, Inc. a/a/o Deisy Rodriguez v. State Farm Mutual Automobile Insurance Company, 12 Fla. L. Weekly Supp. 1185b (Hillsborough County, September 2005); New Hampshire Indemnity Insurance Company v. Rural Metro Ambulance a/a/o William Zaniboni, 13 Fla. L. Weekly Supp. 573a (Seminole County, November 2005).

* * *