14 Fla. L. Weekly Supp. 1170a
Insurance — Personal injury protection — Standing — Assignment — Validity — “Consent to Treatment and Authorizations Guarantee” is assignment of benefits — Pre-suit request for copy of declarations page, PIP log or information normally compiled therein, and policy must be honored by insurer — Coverage — Exhaustion of policy limits — Priority of payments — Hospital lien not recorded within ten days of insured’s discharge from hospital was not timely recorded and should not have taken priority over medical provider’s bills which were received by insurer prior to receipt of actual hospital bill
FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, MD, PA as assignee of Michael Brummitt (Apopka), Plaintiff, vs. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-3343. FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, MD, PA as assignee of Michael Brummitt (Orlando), Plaintiff, vs. GEICO GENERAL INSURANCE COMPANY, Defendant. Case No. 04-SC-3344. September 24, 2007. Donald L. Marblestone, Judge, for C. Vernon Mize, Senior Judge. Counsel: Mark A. Cederberg, Rutledge Bradford Attorneys at Law, Orlando. Robert 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 CAUSE having come before this Court on Plaintiff’s Motion for Summary Judgment on Count II of Plaintiff’s Complaint and supporting Memorandum of Law (certificate of service date April 11, 2007) and Defendant’s Motion for Final Summary Judgment (certificate of service date May 17, 2007 and supporting Memorandum of Law (certificate of service date June 5, 2007), and this Court having reviewed the file and the parties briefs, having heard argument of both counsel and having considered relevant Florida law, finds as follows:
1. On, or about, January 8, 2003, Michael Brummitt was involved in a motor vehicle accident wherein he sustained significant injuries and required emergency medical care.
2. Mr. Brummitt received emergency medical care from the Plaintiff at Florida Hospital Apopka and Florida Hospital Orlando on January 8, 2003 (he was transferred from Florida Hospital Apopka to Florida Hospital Orlando based on the seriousness of his injuries).
3. The Defendant issued an automobile insurance policy to Michael Brummitt entitling Mr. Brummitt to receive no-fault (PIP) benefits as a result of the January 8, 2003 accident.
4. The Plaintiff submitted its bills for care rendered to Mr. Brummitt to the Defendant for payment under the subject policy of insurance.
5. Despite receiving medical bills from the Plaintiff on February 6, 2003 (Florida Hospital Apopka) and February 24, 2003 (Florida Hospital Orlando), the Defendant failed or refused to make payment on the bills, claiming that benefits were exhausted to Florida Hospital Orlando based on a lien it had received. However, the lien was not recorded until February 12, 2003, more than one month following Mr. Brummitt’s discharge from the hospital.
6. Thereafter, the Plaintiff sent Notices of Intent to Initiate Litigation to the Defendant on June 25, 2004, as well as demands for a declarations page, copy of the policy and a PIP log, pursuant to Florida Statutes 627.4137, 627.7401 and 627.736(6)(d). These Notices were received by the Defendant on June 30, 2004.
7. Along with the Notices of Intent to Initiate Litigation, the Plaintiff also sent copies of a document entitled “Consent to Treatment and Authorizations and Guarantee,” upon which it relied as an assignment of benefits. The assignment of benefits expressly states that “I [Michael Burmmitt] assign payment directly to the Hospital and my physician(s)(emphasis added), the insurance benefits otherwise payable to me.” Additionally, the document states in bold letters “THIS ASSIGNMENT OF BENEFITS IS IRREVOCABLE.”
8. In response to Plaintiff’s above-referenced demand, the Defendant responded that benefits were exhausted. The Defendant provided a PIP/Med-Pay register which essentially is a check register, showing only the payment that was made to the hospital. The PIP/Med-Pay register did not show the date that the hospital bill was received or any information regarding other bills received. The Defendant failed to provide a copy of a PIP log that would allow the Plaintiff to confirm that benefits were: 1) indeed exhausted and 2) if exhausted, whether benefits were exhausted properly by allowing a review of what bills were received when, what amounts those bills were and whether they were paid, applied to the deductible or treated in some other fashion.
9. On July 19, 2004, the Plaintiff again wrote to the Defendant and requested a PIP log that would allow the Plaintiff to verify if the benefits were properly exhausted and when the Plaintiff’s bills were received as well as a copy of the declarations page and the policy. Again, the Defendant failed to provide a copy of the PIP log that would have allowed the Plaintiff to determine whether benefits were exhausted, and, if so, whether PIP benefits were exhausted properly.
10. On, or about, September 15, 2004, the Plaintiff filed suit for breach of contract and declaratory relief pursuant to Florida Chapter 86, seeking disclosure of certain insurance information required by Fl. Stat. 627.4137 and 627.7401.
11. Just prior to the hearing on June 6, 2007, the parties stipulated to the consolidation of the two (2) above-referenced cases.
It is hereby ORDERED AND ADJUDGED:
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, as a matter of law, that the document entitled “Consent to Treatment and Authorizations Guarantee,” is an assignment of benefits, and, accordingly, the Plaintiff has standing to bring this cause of action. See Florida Emergency Physicians a/a/o Marvene Jones v. Progressive, 12 Fla. L. Weekly Supp. 805b (County Court for Seminole County 2005) and State Farm Mutual Automobile Insurance Co. v. Florida Emergency Physicians, Kang & Associates, MD, PA a/a/o Robert Davis, Appeal No. 06-51-AP (18th Judicial Circuit, Appellate Division, March 13, 2007) [14 Fla. L. Weekly Supp. 418a].
4. 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).
5. The Court also finds that, as a matter of law, the Florida Hospital lien, upon which the Defendant relied upon in exhausting PIP benefits in this case, to the detriment of the Plaintiff, was not recorded until February 12, 2003. Since the lien was not recorded within ten (10) days of the patient’s discharge (which was on, or around, January 10, 2003), the lien was not recorded timely and the hospital bill in question should not have taken priority over the Plaintiff’s bill(s) received prior to the Defendant’s receipt of the actual hospital bill. See Emergency Physicians of Central Florida a/a/o Carlos Lopez vs. Geico General Insurance Company, Case No. 05-SC-2145 (18th Judicial Circuit, December 6, 2006) (Order Granting Plaintiff’s Motion for Final Summary Judgment) (Judge John R. Sloop) and Public Health Trust of Dade County v. Carroll, 509 So.3d 1232 (Fla. 4th DCA 1987). See also Article IV, Hospital Liens for Medical Care, Sec. 20-157, Code 1965, § 17-18; Laws of Fla. ch. 57-1644, § 2.
6. The Court finds that the Plaintiff is entitled to an award of attorneys’ fees and costs in this matter (Florida Emergency Physicians Kang & Associates, MD, PA a/a/o Michael Brummitt (Apopka), Case No. 04-SC-3343 and Florida Emergency Physicians Kang & Associates, MD, PA a/a/o Michael Brummitt (Orlando), Case No. 04-SC-3344) and reserves jurisdiction as to amount.
