14 Fla. L. Weekly Supp. 184b
Insurance — Personal injury protection — Affirmative defenses — Affirmative defenses that services rendered by medical provider were not reasonable, related and/or necessary are not legally cognizable defenses and are stricken, as it is provider’s burden to prove that services were reasonable, related and/or necessary — Fraud — Affirmative defense contending that insured’s failure to disclose ultrasound and reeducation of movement services during examination under oath constituted fraud was not pled with sufficient specificity and is stricken with leave to amend — Demand letter — Sufficiency — Affirmative defense alleging demand letter was improper because only HCFA forms were attached is stricken — Submission of either itemized statement or HCFA forms satisfies demand letter requirement when demanding full amount of claims submitted — Further, insurer failed to furnish explanation of benefits notifying provider that insurer considered demand letter insufficient and benefits would not be provided
MEDICAL CONSULTANTS OF SOUTH FLORIDA, INC., (Sandra Kremer, Patient), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 06-009449 (55). December 14, 2006. Lisa G. Trachman, Judge, for Eric Beller, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Raquel D. Tapanes, Coral Gables, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
THIS CAUSE came before the Court on August 28, 2006 for hearing on the Plaintiff’s Motion to Strike Defendant’s Answer and Affirmative Defenses; the Court having reviewed the Motion and entire court file; heard arguments; reviewed relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background:
1. The above styled cause of action arises out of a claim for unpaid personal injury protection benefits filed by the Plaintiff on February 19, 2006.
2. The Defendant filed their Answer and Affirmative Defenses to the Plaintiff’s Complaint on June 7, 2006.
3. Plaintiff filed a Motion to Strike Defendant’s Answer and Affirmative Defenses on July 24, 2006.
Conclusions of law:
4. Defendant’s first, second and third affirmative defenses all make essentially the same argument, but address the issue in slightly different ways. Common to each defense is the allegation that the services rendered by the Plaintiff were not reasonable, related and/or necessary.
5. These Affirmative Defenses are not legally cognizable defenses. See Tropical Exterminators v. Murray, 171 So. 2d 432 (Fla. 2d DCA 1965). In Tropical, the Second District Court of Appeal held that affirmative defenses do not deny facts of the opposing party’s claim, but they raise some new matter which defeats the opposing party’s otherwise valid claim.
6. Defendant’s first, second and third affirmative defenses are not legally sufficient, in that it is the Plaintiff’s burden to prove that medical services were reasonable, related and necessary. Derius v. Allstate lndem. Co., 723 So. 2d 271 (Fla. Dist. Ct. App. 1998). Accordingly, Defendant’s first three affirmative defenses are stricken with prejudice.
7. Defendant’s fourth affirmative defense contends that the Patient’s failure to disclose the ultrasound and reeducation of movement during the Examination Under Oath (hereinafter “EUO”), is inconsistent and constitutes fraud. Pursuant to Florida Rule of Civil Procedure 1.120(b), in order for the Defendant to raise a defense of fraud it must be pled with specificity. Id. This Court follows the well established rule that fraud only occurs when “it can be demonstrated, clearly, and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability to impartially adjudicate a matter by improperly influencing the presentation of opposing party’s claim or defense.” Lamora v. United Automobile Insurance Co., 12 Fla. L. Weekly Supp. 114a (2004). Defendant has not met this burden and therefore Defendant’s fourth affirmative defense is stricken without prejudice. The Defendant shall have ten days to amend with the required specificity.
8. Defendant’s fifth affirmative defense based on insufficient demand letter is stricken with prejudice. Defendant alleged that the Plaintiff’s demand letter was improper because only HCFA forms were attached. Pursuant to Florida Statute 627.736(11), the statute provides that when demanding the full amount of the claims submitted either the itemized statement or the HCFA satisfies the requirement. Open MRI of Miami-Dade, Ltd. a/a/o Joseph Vincent v. Progressive Express Insurance Co., No. 04-9201 (Fla. 11th Cir. Ct. Dec. 25, 2005).
9. Therefore Plaintiff is in full compliance with the statutory requirements and Defendant’s demand letter defense is groundless.
10. Furthermore, at no time prior to the filing of the instant suit was Plaintiff provided with an explanation of benefits notifying the Plaintiff that Defendant considered the demand letter insufficient and benefits would not be provided.
11. Defendant’s failure to provide the Plaintiff with any notification is a breach of the insurance policy contract. United Automobile Insurance Company v. R.J. Trapana, M.D. P.A.,12 Fla. L. Weekly Supp. 452a (2005).“ The insurer’s obligation to provide an itemized statement is clear. United Automobile’s failure to provide the required specification resulted in a breach of its obligations. . .” Id.
12. Defendant was obligated by its statutory and contractual duties to provide Plaintiff with notification and reasons for nonpayment, and failure to do so is a breach of the insurance policy. It is an “accepted principle of law that when parties contract upon a matter which is the subject of statutory regulation, the parties are presumed to have entered into their agreement with reference to such statute, which becomes part of the contract.” Foundation Health v. Westside EKG Associates, No. SCO5-870 (Fla. 2006), [31 Fla. L. Weekly S669b].
13. During the hearing the Defendant withdrew its sixth affirmative defense with prejudice. Defendant admits that the Plaintiff does in fact have standing, and further that Plaintiff did provide Defendant with a properly executed assignment of benefits.
Accordingly, it is ORDERED AND ADJUDGED, that all of Defendant’s Affirmative Defenses are stricken with prejudice, with the exception of Defendant’s 4th Affirmative Defense which may be amended as set forth herein.
