15 Fla. L. Weekly Supp. 1115b
Insurance — Personal injury protection — Fraud — Insurer’s motion for summary judgment on claim that provider committed fraud by charging patient 20% of the amount actually collected from insurer is denied
ANN K MEDICAL OFFICE, INC., a/a/o GARCIA MARCOS, Plaintiff, vs. INTEGON GENERAL INSURANCE CORPORATION, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 04-9442 SP 26 (04). September 9, 2008. Gloria Gonzalez-Meyer, Judge. Counsel: Liam P. Kelly. Kelly Arias, Law Offices of Gonzalez & Associates, LLC, Miami.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON FRAUD ISSUES
THIS CAUSE, having come before the Court on July 21, 2008 upon Defendant’s Motion for Summary Judgment on Fraud Issues and the Court having heard argument of counsel, reviewed the procedural history and relevant legal authority, and having otherwise been fully advised in the premises, the Court hereby DENIES Defendant’s Motion on the following grounds:
Background:
1. This is a breach of contract action for personal injury protection (hereinafter “PIP”) benefits.
2. The Plaintiff timely submitted bills for dates of service 7/8/04 thru 9/1/04 to the Defendant.
3. The Defendant has failed to pay and alleges that no payment is due because Plaintiff allegedly committed fraud pursuant to Florida Statutes 817.234 and 627.736.
Conclusions of Law:
Summary Judgment Standard
It is established Florida law that on a motion for summary judgment, the moving party bears the burden of proving the non-existence of a genuine issue of material fact. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966).
The elements included in the Criminal Fraud Statute regarding deductibles and copayments are not included in the Civil PIP Statute. The only item included in the Civil Statute, drawn from the Criminal Statute, is the necessary conviction under Florida Statute 627.736(12).
In the case sub judice, Defendant contends that Plaintiff billed as its usual and customary, and then charged Marcos Garcia 20% of the amount actually collected from the Defendant.
However, there has been no showing by the Defendant that there is a criminal conviction as required by Florida Statute 817.234. Moreover, Ms. Annie Leon testifies in her affidavit, that neither herself nor the owner of the clinic, has ever been convicted of a crime. Plaintiff’s Exhibit A. Moreover, in the same affidavit Ms. Leon testifies that she never intended to waive deductibles and therefore does not have the requisite scienter as required by Florida Statute 817.234.
Lastly, the Defendant has not proven that Plaintiff failed to make a good faith effort to collect deductibles.
WHEREFORE, Defendant’s Motion for Summary Judgment on Fraud Issues is hereby DENIED.
