14 Fla. L. Weekly Supp. 1167a
Insurance — Personal injury protection — Declaratory action — Insurer is required to furnish declarations page, policy and/or PIP log upon presuit request from assignee/medical provider
FLORIDA EMERGENCY PHYSICIANS as assignee of Douglas Watkins, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-2518. September 19, 2007. Donald L. Marblestone, Judge. Counsel: Michael A. Mills, Orlando. Don Matthews, Fort Myers.
ORDER
THIS MATTER having come before this Court on Motion For Summary Judgment as to Count II and this Court having heard arguments of counsel and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED that:
1. This is a claim for declaratory relief arising out of a motor vehicle collision that occurred on or about 11/19/2003.
2. Douglas Watkins executed an assignment of benefits in favor of Florida Emergency Physicians Kang & Associates, MD., P.A.
3. Florida Emergency Physicians Kang & Associates MD., P.A., submitted its billing for payment.
4. Thereafter, on April 5, 2004, the Plaintiff sent a Notice of Intent to Initiate Litigation, as well as, a request to the Defendant for a copy of the policy, declarations page, and PIP payout log pursuant to Florida Statutes 627.4137, 627.736(6)(d), and 627.7401.
5. On April 14, 2004, the Defendant sent a response to the Plaintiff’s demand, indicating that the bill was paid at 20% under the medical payment coverage of the subject policy. Defendant further stated that “the patient did not qualify for the PIP on this policy.” The Defendant did not enclose a copy of the policy, as requested in the Plaintiff’s demand.
6. Thereafter, the Plaintiff filed a Complaint requesting declaratory relief.
It is therefore ORDERED AND ADJUDGED that:
The Plaintiff’s Motion for Final Summary Judgment is GRANTED on the merits. The Defendant’s argument that none of the statutes cited by Plaintiff obligate the Defendant to provide a policy and declarations page. The Court finds that a Defendant, upon proper request, is required to furnish, presuit, a copy of the patient’s declarations page, policy, and/or PIP log in accordance with Florida Statutes 627.4137. The court specifically finds that Florida Statute §627.4137, which references “liability carriers” refers to the nature of the claim being presented as opposed to the type of coverage sought, and obligates a PIP carrier to comply. Florida Emergency Physicians is still a claimant under Chapter 627 and the policy should have been provided presuit, and a postsuit providing of the policy can not cure a declaratory action.
This Court finds as persuasive the long line of county court cases specifically Florida Emergency Physicians Kang & Associates, MD, PA (Sharna Adderly) v. United Automobile Insurance Company, 12 Fla. L. Weekly Supp. 774c, 9th Judicial Circuit, Judge Leon B. Cheek (2005), and followed by Florida Emergency Physicians Kang & Associates, MD, PA (Marvene Jones) v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp 805b, 18th Judicial Circuit, Judge J. R. Sloop (2005); American Vehicle Insurance Company v. Florida Emergency Physicians Kang & Associates, MD, PA (Stephanie Carrico), 14 Fla. L. Weekly Supp. 352a, 9th Judicial Circuit, Judge Jerry L. Brewer (2007). Each of these cases found the Plaintiff was entitled to the information being sought pre-suit and rejected the same arguments presented here by the Defendant.
This Court also finds as persuasive the Fourth District’s opinion in United Automobile Insurance Company v. Rousseau, 21 Fla. L. Weekly D2477a, (4th DCA, 1996). Rousseau involved an uninsured motorist claim. It is undisputed that an uninsured motorist claim, like a PIP claim, is a first party claim by nature, lending support to this court’s finding that the liability portion of Florida Statute 627.4137 goes to the nature of the carrier, and not the nature of the claim. The court reserves jurisdiction for the taxation of fees and costs as may be appropriate.
