14 Fla. L. Weekly Supp. 671a
Insurance — Personal injury protection — Coverage — Defenses — Affirmative defenses regarding validity of assignment, failure to comply with conditions precedent and policy, failure to comply with standard disclosure and acknowledgment form requirement, and failure to provide discovery of facts about injured person are not pled with required specificity and are stricken — Fraud defense is stricken because county court does not have jurisdiction to determine criminal fraud — Insurer does not have standing to assert defense that medical provider is attempting to exploit insured for financial gain
SPINE REHABILITATION CENTER, INC. (As Assignee of Manuel Baez), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Claims Division. Case No. 06-17263, Division I. March 20, 2007. Charlotte W. Anderson, Judge. Counsel: Timothy A. Patrick, Nicholas, Lipscomb & Patrick, P.A., Tampa, for Plaintiff. Elizabeth E. Andrews, Kingsford & Rock, P.A., for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES
THIS CAUSE having come before the Court on March 1, 2007, on Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses. Present before the Court were Plaintiff’s counsel, Timothy A. Patrick, Esquire and Defendant’s counsel, Elizabeth Andrews, Esquire. The Court after hearing argument of counsel and after review of the file makes the following findings:
1. Defendant’s First Affirmative Defense alleges Plaintiff does not have a valid assignment of benefits to confer standing to Plaintiff. Said defense, although previously generally denied in Defendant’s answer, was not pled with the required specificity and thus, it is not a proper affirmative defense. Defendant’s First Affirmative Defense is stricken, with leave to amend.
2. Defendant’s Second Affirmative Defense alleges Plaintiff submitted medical bills to the Defendant which contain billing for services not rendered, fabricated medical records, and/or upcoding pursuant to F.S. Sections 817.234 and 627.736, respectively. This Court finds that it does not have jurisdiction to determine fraud. A criminal statute cannot confer jurisdiction on a county court for a circuit court crime. As such, Defendant’s Second Affirmative Defense of fraud is stricken with leave to amend, specifically as to F.S. Section 627.736.
3. As to Defendant’s Third Affirmative Defenses, alleging Plaintiff failed to comply with Florida Statutes Section 627.736(5)(e) and failed to place the carrier on notice of a covered loss or amount of same, the court’s ruling is the same as No. 2.
4. Defendant’s Fourth Affirmative Defense, alleges Plaintiff is attempting to exploit this patient for financial gain and is in violation of Florida Statutes Section 456.075(1)(n) and Section 460.413(1)(n). The court finds these defenses are not applicable. Defendant erroneously cited 456.075(1)(n), as opposed to 456. 075. Nonetheless, the Defendant does not have standing on behalf of the patient to raise this defense. Defendant’s Fourth Affirmative Defense is hereby stricken, without leave to amend.
5. Defendant’s Fifth Affirmative Defense, alleging Plaintiff failed to comply with conditions precedent and Manuel Baez failed to comply with Defendant’s policy of automobile insurance was not pled with specificity. Defendant’s Fifth Affirmative Defense is stricken with leave to amend.
6. Plaintiff does not take issue with Defendant’s Sixth Affirmative Defense.
7. Defendant’s Seventh Affirmative Defense, alleging Plaintiff failed to satisfy the requirement imposed by Florida Statutes Section 627.736(1), is not an affirmative defense, has previously been plead and, as such, is hereby stricken.
8. Defendant’s Eighth Affirmative Defense, alleges Plaintiff failed to properly complete the CMS-1500 forms for Box 31 as promulgated by the Centers for Medicare and Medicaid Services (CMS) and/or Florida Statutes Section 627.736(5)(d). Defendant’s Eighth Affirmative Defense is hereby stricken with leave to amend to remove the “amount” language.
9. Defendant’s Ninth Affirmative Defense, alleges Plaintiff failed to comply with Florida Statutes Section 627.736(5)(e), as it pertains to the standard disclosure and acknowledgment form, as Plaintiff has not furnished notice of the amount of covered loss or medical bills. The Court found the Defendant’s Ninth Affirmative Defense is insufficiently worded and as such, is stricken with leave to amend.
10. Defendant’s Tenth Affirmative Defense, alleging Plaintiff failed to provide discovery of facts about an injured person, as requested pursuant to Florida Statutes Sections 627.736(6), and Plaintiff has not performed all conditions precedent to litigation. The Court found Defendant’s Tenth Affirmative Defense was not sufficiently specific and such, is hereby stricken with leave to amend.
Defendant shall have ten (10) days from the receipt of Plaintiff’s Second Amended Complaint to file its Amended Affirmative Defenses.
