14 Fla. L. Weekly Supp. 1167b
Insurance — Personal injury protection — Declaratory action — Insurer’s obligation to provide policy, declarations page and/or PIP log on presuit request from assignee/medical provider — Cancelled policy — Where insurer is alleging that policy was not in effect at time of loss due to cancellation, voiding, or termination, provider is entitled to certified copy of declarations page and policy presuit
FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, M.D. PA., as assignee of Freddie Walker, Plaintiff, vs. GEICO INDEMNITY COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-1488. September 12, 2007. Donald L. Marblestone, Judge. Counsel: Mark A. Cederberg, Rutledge Bradford, P.A., Orlando. Robert D. Bartels, Orlando.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON COUNT II OF PLAINTIFF’S COMPLAINT AND DENYING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before this Court on Plaintiff’s Motion for Summary Judgment on Count II of Plaintiff’s Complaint (certificate of service date April 5, 2007) and Defendant’s Motion for Final Summary Judgment (certificate of service date May 18, 2007), and this Court having reviewed the file, having heard argument of counsel, having considered relevant Florida law, finds as follows:
1. This is a claim for PIP benefits arising out of a motor vehicle accident that occurred on, or about, November 4, 2003 involving the assignee, Freddie Walker.
2. The Plaintiff rendered emergency medical services to Mr. Walker, in the emergency room, on November 4, 2003 for injuries Mr. Walker sustained in the subject motor vehicle accident.
3. The Defendant issued an automobile insurance policy to Mr. Walker, but alleged that the policy of insurance had canceled prior to the subject motor vehicle accident based on Mr. Walker’s failure to pay the insurance premium.
4. On, or about, January 16, 2004, the Plaintiff submitted its bill for care and treatment of Mr. Walker to the Defendant and the bill went unpaid.
5. Thereafter, on April 5, 2004, a Notice of Intent to Initiate Litigation (15 day demand letter) was sent to the Defendant’s “designee” pursuant to Florida law and was received by the Defendant on April 8, 2004. Included in the Notice package was a request for a copy of the policy of insurance, declarations page and PIP log.
6. On April 12, 2004, the Defendant responded to Plaintiff’s Notice of Intent to Initiate Litigation by stating that “payment is not due” because the “policy was not in effect on date of loss due to non-payment of premium.” The Defendant’s response also stated that “no affidavit of coverages will be provided due to policy was not in effect on date of loss.” The Defendant failed to provide a copy of the subject policy of insurance and failed to provide a copy of the declarations page (confirming that the policy was indeed canceled prior to the date of loss).
7. The Plaintiff waited two (2) additional weeks, but was left in doubt as to whether it had a claim for breach of contract, as the Defendant refused to provide a copy of the policy and the declarations page (which would have certified/confirmed that the policy was indeed canceled prior to the date of loss).
8. On May 10, 2004, the Plaintiff filed suit for breach of contract and declaratory relief pursuant to Florida Chapter 86 regarding Plaintiff’s right to obtain, pre-suit, disclosure of insurance information, including the declarations page and policy.
9. The Defendant’s Corporate Representative, Rebecca Schatzow, testified that the Defendant could have produced a declaration page and certified copy of the policy which would have included an endorsement page confirming that the policy at issue was canceled prior to the subject date of loss, but the Defendant failed or refused to produce the documents.
10. Prior to the hearing on the parties’ competing Motions for Summary Judgment, the Plaintiff dismissed Count I of its Complaint for Breach of Contract.
11. The Defendant’s failure to provide a copy of the policy and declarations page in this case, pre-suit, necessitated the filing of the instant lawsuit.
It is hereby ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for Summary Judgment on Count II is GRANTED.
2. Defendant’s Motion for Final Summary Judgment is DENIED.
3. The Court finds, and Florida law is well-settled in this respect, that a pre-suit request for a copy of the declarations page, PIP log (or information normally compiled therein) and policy of insurance must be honored by the Defendant. See New Hampshire Indemnity Insurance Co. vs. Rural Metro Ambulance a/a/o William Zaniboni, Case No. 04-72-AP (18th Judicial Cir., Appellate Division, November 18, 2005) [13 Fla. L. Weekly Supp. 573a], certiorari denied, 5D-05-4331 (Fla. 5th DCA, April 5, 2006); Progressive Express Insurance Co. v. Physical Medicine Group, a/a/o Audra Isaacson, 13 Fla. L. Weekly Supp. 972a (18th Judicial Circuit. Ct., Appellate Div. May 11, 2006); Florida Emergency Physicians a/a/o William Eve v. American Vehicle Insurance Co., 13 Fla. L. Weekly Supp. 973a (18th Judicial Circuit Ct. Appellate Div. April 21, 2006); GEICO General Insurance Company v. Florida Emergency Physicians, Kang And Associates, M.D., PA., a/a/o Camille Davila, 06-59-AP, Fla. 18th Cir. App., December 18, 2006 [14 Fla. L. Weekly Supp. 238a]; GEICO General Insurance Company v. Florida Emergency Physicians Kang & Associates, M.D., P.A. as assignee of Jose Fret, 14 Fla. L. Weekly Supp. 232a (18th Judicial Circuit Ct., Appellate Div., January 29, 2007); GEICO General Insurance Company v. Florida Emergency Physicians Kang & Associates, M.D., P.A. as assignee of Brandon Taylor, 06-50-AP (18th Judicial Circuit Ct., Appellate Div., January 23, 2007); American Vehicle Insurance Company v. Florida Emergency Physicians Kang & Associates, M.D., P.A. as assignee of Carrico, Case No. CVA1 05-17 (9th Judicial Circuit, Appellate Div., January 26, 2007) [14 Fla. L. Weekly Supp. 352a] (“we hold that a PIP carrier is required by Sections 627.736(6)(d) and 627.4137, Florida Statutes to provide insurance information to an insured or the assignee of the insured); Florida Emergency Physicians Kang & Associates, M.D., P.A. a/a/o Freddie Walker vs. Geico Indemnity Company, Case No. 04-SC-1488 (18th Judicial Circuit, March 1, 2007) (Order Denying Defendant’s Motion for Final Summary Judgment (Judge V. Mize) and Marcus Laws vs. Florida Automobile Joint Underwriting, 12 Fla. L. Weekly Supp. 566a (Fla. Duval Cty. 2005).
4. The Court further finds that, as a matter of law, the Plaintiff is entitled to receive a certified copy of the declarations page and policy of insurance pre-suit in those instances wherein the Defendant is alleging that the policy of insurance was not in effect (either cancelled, voided, terminated, etc.) at the time of the subject loss to confirm the status of the subject policy.
5. In this case, it is the opinion of this Court that had the Defendant simply produced, pre-suit, a certified copy of the declarations page and policy of insurance with the endorsement confirming that the policy was canceled prior to the date of loss, the instant litigation would not have been necessary.
6. The Court finds that the Plaintiff is entitled to an award of attorneys’ fees and costs incurred in the litigation of this matter and reserves jurisdiction as to the amount of such award.
