14 Fla. L. Weekly Supp. 758a
Insurance — Personal injury protection — Discovery — Depositions — In granting motion for clarification of ruling that trial court departed from essential requirements of law by compelling deposition sought to find out how insurer determined reasonable charges, appellate court determines that issues raised in pleadings and joint pretrial statement include reasonableness of charges but maintains that reasons underlying amount insurer pays on claims is totally irrelevant because it is medical provider’s burden to prove reasonableness of charges rather than insurer’s burden to disprove reasonableness
PROGRESSIVE EXPRESS INSURANCE COMPANY, Petitioner, v. ST. GERMAIN CHIROPRACTIC, as assignee of ERNESTO LOPES, Respondent. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. 2005-CA-11053-O. Writ No. 05-102. May 25, 2007. Counsel: Douglas A. Stein, Anania, Bandklayder, Blackwell, Baumgarten, Torricella & Stein, Miami, for Petitioner. Guy DiMartino, Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando. Mark A. Cornelius, Bogin, Munns & Munns, Orlando, for Respondent.
ORDER DENYING RESPONDENT’S AND GRANTING PETITIONER’S MOTION FOR CLARIFICATION
[Original Opinion at 14 Fla. L. Weekly Supp. 757a]
THIS MATTER comes before the Court on Respondent’s motion for clarification filed on February 21, 2007, and Petitioner’s motion for clarification filed on February 26, 2007. The Court finds as follows:
On February 9, 2007, this Court entered an “Order Granting Petition for Writ of Certiorari” (hereinafter “Order”) [14 Fla. L. Weekly Supp. 757a] which quashed the trial court’s order compelling the deposition of Juan Andrade. Both Petitioner and Respondent filed motions for clarification. Respondent’s motion for clarification asks this Court to strike a paragraph from the Order.1 Respondent contends that the offending paragraph is unnecessary dicta in light of this Court concluding that the reasonableness of Respondent’s charges were not in dispute. Respondent also contends that this Court misapprehended the reason it wanted to take the deposition of Juan Andrade.
The reason Respondent desires to take the deposition is quite clear: “to determine the reason Petitioner paid what it did.” (Resp’t Mot. for Clarification ¶6.) This is totally irrelevant in a suit seeking to recover personal injury protection benefits. See Nationwide Mut. Fire Ins. Co. v. Augustine V. Joseph, M.D., P.A., 10 Fla. L. Weekly Supp. 379a (Fla. 9th Cir. Ct. March 3, 2003) (reasons and motivations underlying an insurer’s actions irrelevant in a claim for insurance benefits). Furthermore, in light of Petitioner’s motion for clarification, this Court concludes that the reasonableness of Respondent’s charges is in dispute.
Petitioner’s motion for clarification requests this Court amend its Order to find that the reasonableness of Respondent’s charges are a disputed issue. Petitioner contends that it has never stipulated that the reasonableness of the charges were reasonable and that the parties’ joint pretrial statement clearly indicates that the reasonableness of the charges are in dispute. Petitioner also argues that the Order can be read to require an insurer to raise as an affirmative defense the unreasonableness of a provider’s charges, in contravention to Florida law.
After reviewing the complaint, answer and affirmative defenses, and joint pretrial statement, this Court concludes that the reasonableness of Respondent’s charges is a disputed issue. Specifically, Petitioner denied the complaint’s allegation that “Plaintiff gave notice of . . . reasonable, necessary and related medical rehabilitative and remedial treatment rendered.” (Pet. App. 2, 8.) Also, one of the stipulated issues of fact to be tried, as indicated in the joint pretrial statement, is whether the services provided were reasonable and medically necessary such that they have been paid. The issues raised in the pleadings and joint pretrial statement cover the reasonableness of the charges, as well as the medical necessity of the treatment.
Finally, nothing in this or the Court’s prior Order should be construed as indicating that an insurer has the burden of disproving the reasonableness of Respondent’s charges. It is Respondent’s burden to prove that its charges were reasonable. See Derius v. Allstate Indem. Co., 723 So. 2d 271, 272 (Fla. 4th DCA 1998) (reasonableness and necessity are essential elements of a plaintiff’s case seeking personal injury protection benefits). In meeting this burden, finding out the reasons underlying the amount Petitioner pays its claims is totally irrelevant. See Nationwide Mut. Fire Ins. Co. v. Augustine V. Joseph, M.D., P.A., supra [10 Fla. L. Weekly Supp. 379a].
Accordingly, it is hereby ORDERED and ADJUDGED that Respondent’s Motion for Clarification is DENIED and Petitioner’s Motion for Clarification is hereby GRANTED. The Order Granting Petition for Writ of Certiorari is clarified as set forth above. (JOHN MARSHALL KEST, JANET C. THORPE, and A. THOMAS MIHOK, JJ.)
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1Respondent takes exception with the following paragraph in the Order:
Assuming arguendo that the reasonableness of Petitioner’s payments is an issue, Respondent would still not be entitled to take the deposition. Respondent wants to take the deposition in order to determine the reason underlying the amount Petitioner pays its claimants. This is irrelevant in a dispute over insurance benefits. See Nationwide Mut. Fire Ins. Co. v. August V. Joseph, M.D., P.A., No. 02-CA-9257 (Fla. 9th Cir. Ct. March, 3, 2003) [10 Fla. L. Weekly Supp. 379a] (reasons and motivations underlying an insurer’s actions not relevant in a claim for insurance benefits).
