14 Fla. L. Weekly Supp. 400a
Insurance — Personal injury protection — Declaratory judgment — Insurer’s obligation to provide policy, declarations page and PIP log on presuit request by assignee/medical provider — Section 627.736(6)(d) requires presuit production of PIP log to assignee/medical provider if requested — Error to grant motion to dismiss declaratory action — Outstanding issues in case preclude award of attorney’s fees to provider
PROFESSIONAL MEDICAL GROUP, INC., a/a/o JAVIER MOISES VILLEGAS, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-143 AP. L.C. Case No. 04-8617 SP 25. February 28, 2007. An Appeal from the County Court for Miami-Dade County. Counsel: Mari Sampedro-Iglesia, for Appellant. Michael Neimand, for Appellee.
AFFIRMED IN PART, REVERSED IN PART.
32 Fla. L. Weekly D2066a. (Ruling on attorney’s fees issue reversed)]
(Before REYES, FREEMAN, and TUNIS, JJ.)FACTS
(REYES, J.) Appellant, Professional Medical Group, Inc., (“PMG”), appeals an Order Granting a Dismissal of the Declaratory Action in favor of United Automobile Insurance Company, (“UAIC”).
On January 24, 2004, the insured, Javier Moises Villegas, (“Villegas”), was involved in a motor vehicle accident. As a result of the accident, Villegas sought treatment at PMG. Villegas then executed an assignment of his benefits to PMG.
After medical services were provided and administered to Villegas, PMG submitted total charges to UAIC in the amount of $8,724.64.1 A dispute developed involving the payment eligibility of these charges. During the course of this controversy, PMG demanded a copy of the PIP log from UAIC but did not receive it until after the lawsuit was filed with the trial court below.
Count I of the complaint was for breach of contract, but was later withdrawn. Count II was for Declaratory Relief pursuant to § 627.736(6)(d), Fla. Stat. (2004). In Count II, PMG prayed the Court order:
1. Full disclosure of all documents and allow full and liberal discovery leading to admissible evidence in furtherance of the dispute herein;
2. Issue a judgment stating that the Appellant/Plaintiff is entitled to receive a copy of an updated PIP payout log and explanation of benefits during its pre-suit investigation;
3. Issue a judgment stating that the failure to provide a PIP payout log during pre-suit investigation of claims constitutes an Unfair and Deceptive Trade Practice in violation of § 626.9541, Fla. Stat. (2004);
4. Determine the applicable law, including the provisions of the Florida Statutes which apply to the insurance policy and parties;
5. Declare that each policy provision not in conformity with Florida law be amended to conform with Florida law;
6. Declare that any ambiguities in the statutes or policy be construed in favor of coverage and relief sought by the Appellant/Plaintiff; and
7. Determine and declare any other material matters pertaining to the coverage.
On December 3, 2004, UAIC filed a Motion to Dismiss PMG’s claim for failing to state a cause of action based on the premise that PMG cited the incorrect statutory provision. They argued section 627.736(6)(d), Fla. Stat. (2004) did not provide PMG with a pre-suit right to receive a copy of the PIP log. On February 28, 2005, the lower court granted UAIC’s Motion to Dismiss. This appeal ensued.
STANDARD OF REVIEW
In ruling on a motion to dismiss, the trial court is limited to determining whether the petition states a cause of action upon which relief may be granted. Provence v. Palm Beach Taverns, Inc., 676 So. 2d 1022 (Fla. 4th DCA 1996). In making this determination, the trial court must confine its review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept as true all well-pleaded allegations. Marshall v. Amerisys, Inc., 943 So. 2d 276, 278 (Fla. 3d DCA 2006); City of Gainesville v. State Dept. of Transp., 778 So. 2d 519 (Fla. 1st DCA 2001); Clintron v. Osmose Wood Preserving, Inc., 681 So. 2d 859, 860-61 (Fla. 5th DCA 1996). The standard of review is de novo. Smith v. City of Fort Meyers, 898 So. 2d 1177, 1178 (Fla. 2d DCA 2005).
In their response Brief, Appellee argues the lower court did not abuse its discretion in dismissing the declaratory relief count for failing to state a cause of action. Appellee’s position is that section 627.736(6)(d)2, the statute cited by Appellant, deals with fraud, and permits an insurer to secure information concerning the claim from a claimant’s employer and treating physician, but does not specifically provide for a copy of the PIP payout log from an insurer. This Court respectfully disagrees.
Generally, the PIP statute is designed to provide a speedy resolution to issues between insurance companies and their insured/assignees. Furthermore, it is well settled that PIP laws are outcome oriented and designed to level the playing field between the insured and insurance companies. Ivey v. Allstate Insurance Company, 774 So. 2d 679, 683 (Fla. 2000).
Several county courts side with the position of this trial court that § 627.736(6)(d) requires the pre-litigation production of a PIP log to an assignee if requested.3 “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.” Southern Group Indemnity, Inc. v. Humanity Health Care, Inc., 13 Fla. L. Weekly Supp. 1061b (Fla. Dade Cty. Ct., 2006). However, to constitute a confession of judgment all counts of the action must be terminated as a result. Allstate Insurance Co. v. Chaple, 774 So. 2d 742 (Fla. 3d DCA 2000). The production of the PIP log did not resolve the other outstanding issues raised in PMG’s declaratory action. Finally, any defenses submitted by UAIC are deemed moot since they voluntarily provided the document to PMG post-suit.
Judge Herring eloquently expresses the opinion of this Court in Integra Diagnostics (a/a/o Shawn Unstead) v. Reliance National Indemnity Co.:
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 their 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. 8 Fla. L. Weekly Supp. 394c (Fla. Broward Cty., 2001).
Although § 627.736(6)(d) does not specifically reference the PIP log as a document that must be produced by an insurer pre-suit, this Court holds the statutory language is broad enough to include this document.
Therefore, this Court holds the lower court did err in Granting the Motion to Dismiss the Declaratory Action.
ATTORNEYS FEES
Regarding PMG’s Motion for Attorneys Fees, Florida law is clear that in any dispute which leads to judgment against an insurer and in favor of the insured, attorney’s fees shall be awarded to the insured. Ivey, 774 So. 2d at 684; See § 627.736(8), Fla. Stat. (2004). While this may be true, this Court finds other issues still outstanding in this case that preclude the award of attorneys fees.
The Motion to Dismiss is hereby VACATED.
The Motion for Attorney’s Fees is hereby DENIED.
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1The dates of service spanned from January 28, 2004 through April 27, 2004.
2§ 627.736(6)(d) provides:
The injured person shall be furnished, upon request, a copy of all information obtained by the insurer under the provision of this section and shall pay a reasonable charge, if required by the insurer.
3Cicero Ortho-Med Center, Inc. v. United Automobile Ins. Co., 10 Fla. L. Weekly Supp. 436c (Fla. Dade Cty. Ct., 2003); Open MRI & Diagnostic Imaging, Inc. v. United Automobile Ins. Co., 13 Fla. L. Weekly Supp. 908b (Fla. Broward Cty. Ct., 2006); Coastal Medical Orthopedic Service v. United Automobile Ins. Co., 13 Fla. L. Weekly Supp. 1229a (Fla. Broward Cty. Ct., 2006); Tallahassee MRI, P.A. v. Progressive Auto Ins. Co., 11 Fla. L. Weekly Supp. 69a (Fla. Broward Cty. Ct., 2003).
