15 Fla. L. Weekly Supp. 929b
Insurance — Personal injury protection — Declaratory judgment — PIP insurer is not required to provide PIP log to assignee/medical provider upon pre-suit request — There is no basis for provider’s claim that insurer breached contract by failing to furnish requested policy information — Knowledge of policy and declarations page previously furnished to assignor/insured is imputed to provider, and insurer indicated in response to demand letter that it had provided requested documents — Explanation of benefits — Insurer did not breach policy by failing to provide EOB where insurer did not deny or reduce any charges but paid charges until exhaustion of policy limits, at which time insurer provided EOB
GULF COAST INJURY CENTER NORTH, L.L.C. d/b/a GULF COAST INJURY CENTER (As Assignee of ROBERTO ALBIZAR), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil. Case No. 07-CC-011779-J. July 10, 2008. James D. Arnold, Judge. Counsel: Timothy A. Patrick, for Plaintiff. Michael P. Liebgold, Luks, Santaniello, Perez, Petrillo & Gold, Tampa, for Defendant.
[Editor’s note: Motion to set aside order DENIED at 15 Fla. L. Weekly Supp. 1119a]
ORDER
THIS CAUSE came before the Court for hearing on June 24, 2008 upon Plaintiff’s Motion for Summary Judgment, and the Court having been otherwise duly advised in the premises, it is hereupon, ORDERED AND ADJUDGED that:
1. The Plaintiff filed this three count declaratory action/personal injury protection (“PIP”) suit alleging that the Defendant failed to provide the Plaintiff with a PIP Log and a policy with declarations page and policy (Count II) in response to its PIP pre-suit demand (Count I). The Plaintiff also alleged that the Defendant improperly failed to timely provide it with explanation of benefits (“EOB’s”) forms (Count III). Count II for PIP benefits was voluntarily dismissed by the Plaintiff.
COUNT I — PRODUCTION OF PIP LOG
2. The Defendant PIP insurer is not required to provide a PIP Log to the Plaintiff upon pre-suit request. Southern Group Indemnity, Inc. v. Humanitary Health Care, Inc. a/a/o Martha Lopez, 975 So.2d 1247 (Fla. 3rd DCA March 12, 2008), Geico v. Florida Emergency Physicians, 972 So.2d 966 (Fla. 5th DCA Jan. 31, 2008).
COUNT I — PRODUCTION OF POLICY INFORMATION
3. The Plaintiff has alleged that the Defendant has violated Fla. Stat. 627.4137 and thus breached the subject contract for the policy of insurance by failing to provide it with requested policy information.
4. However, it was undisputed that the Defendant had provided the Plaintiff a copy of subject policy and policy declarations on March 19, 2007 in response to the Plaintiff’s then-attorney’s request. In support, the Defendant provided the sworn affidavit of its adjuster, Jean Williams.
5.The insured was therefore imputed with knowledge of the contents of the subject policy when the Defendant provided it to her through her attorney, as an attorney acts as an agent for its client. Brydger v. Wolfe, 847 So. 2d 1074, 1077 (Fla. 4th DCA 2003), citing In re Brugh’s Estate, 306 So. 2d 599, 600 (Fla. 2nd DCA 1975), Starling v. State, 799 So.2d 425 (Fla. 5th DCA 2001); Woodard v. Fla. State Univ., 518 So.2d 336 (Fla. 1st DCA 1987); State v. Grooms, 389 So.2d 313 (Fla. 2d DCA 1980); Blynder v. Blynder, 294 So.2d 717 (Fla. 3d DCA 1974).
6. The Plaintiff alleged standing on the basis of accepting an assignment of benefits from the Defendant’s insured. An assignee stands in the shoes of its assignor. Price v. RLI Ins. Co., 914 So.2d 1010, 1013 (Fla. 5th DCA 2005) citing Dove v. McCormick, 698 So.2d. 585 (Fla. 5th DCA 1997) and State Farm Fire and Cas. Co. v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990).
7. Knowledge of the contents of an insurance policy can be imputed from an agent to an insurer. Poole v. Travelers Ins. Co., 179 So. 138, 143 (Fla. 1938), General Ins. Co. v. Ramanovski, 443 So.2d 302, 303 (Fla. 3rd DCA 1982). The insured was therefore imputed with knowledge of the contents of the subject policy when the Defendant provided it to her through her attorney. As the insured/assignor was charged with knowledge of the contents of the policy, its assignee must be so charged with knowledge of the contents of the policy as it stands in the shoes of its assignor, as discussed above.
8. Thus, there is no basis for the Plaintiff/assignee’s claim it did not receive the requested policy information as it must be charged with knowledge of the contents of the policy and declarations page which are at issue in Count II of this suit.
9. In addition, the Defendant’s response to the Plaintiff’s PIP pre-suit demand requesting, inter alia, the policy, indicated that the requested documents were attached per the transcript of Defendant’s Jean Williams attached to the Plaintiff’s subject Motion, and referenced response attached to that transcript. This document alone creates an issue of fact as to whether the policy was provided directly to the Plaintiff as it was authenticated under oath by Ms. Williams under examination by Plaintiff’s counsel.
COUNT III — FAILURE TO PROVIDE EXPLANATION OF BENEFITS FORMS
10. Finally, the Plaintiff alleges that the Defendant breached its contract for the policy of insurance by failing to timely provide explanation of benefits forms.
11. However, the Plaintiff’s own motion correctly admits that a PIP insurer is only required to provide an EOB where it denies or reduces a charge per Fla. Stat. 627.736(4)(b). Here, the Defendant PIP insurer did not deny or reduce any (and paid others until exhaustion of PIP benefits occurred) of the Plaintiff’s charges until May 10, 2007 and that is when it provided the Plaintiff with an EOB.
12. In fact, nowhere in the PIP statute is there found a requirement that an EOB must be generated to a healthcare provider within 30 days of receipt of its respective charges.
13. A PIP insurer is not automatically liable for charges not paid within the PIP statute’s 30 day payment period found in Fla. Stat. 627.736(4)(b). This is not a cavalier statement of the law, as a PIP insurer runs the risk of attendant interest and attorney’s fees and costs if it is ultimately found liable for those charges by the trier of fact, (a question of fact for the jury per Derius v. Allstate Indem. Co., 723 So. 2d 271-273 (Fla. 4th DCA), rev. denied, 719 So. 2d 892 (Fla. 1998). See also State Farm Mutual Automobile Insurance Company v. Sestile, 821 So.2d 1244 (Fla. 2nd DCA 2002); Auto Owners Ins. Co. v. Marzulli, 788 So. 2d 1031, 1034 (Fla. 2d DCA 2001)). United Automobile Insurance Company v. Rodriguez, 808 So. 2d 82 (Fla. 2001). However, the mere fact that the Defendant PIP insurer challenges the Plaintiff’s charges past 30 days, does not subject it to liability either as to those charges or for non-production of EOB’s.
14. Again, as detailed above, an EOB is not required by the PIP statute until, and if, the PIP insurer decides to reduce or deny a charge. A healthcare provider’s recourse for non-payment of its charges is to timely serve a PIP pre-suit demand upon a PIP insurer and file suit if that insurer decides not to pay within the statutory time limit. If the insurer is ultimately found liable by the trier of fact, it is then also liable for interest and attorney’s fees and costs. However, if the PIP insurer is found not liable by the trier of fact, it owes absolutely nothing. AIU Insurance Company v. Daidone, 760 So. 2d 1110, 1112 (Fla. 4th DCA 2000).
15. The Plaintiff’s Count III for EOB’s therefore cannot be granted by this Court, as this Court would then be engrafting its own requirement into the PIP statute, an ultra vires act.
16. The PIP statute must be strictly construed. Luis A. Hernandez v. Progressive Express Insurance Company, 14 Fla. L. Weekly Supp. 232c (Fla. 11th Circ. Appell. Miami-Dade 2007). It must be strictly construed because it awards attorney’s fees as a penalty to a prevailing party against a PIP insurer in derogation of the common law in Florida whereby each party is typically responsible for its own fees. Liberty Nat. Life Ins. Co. v. Bailey ex rel. Bailey, 944 So.2d 1028, 1030 (Fla. 2d DCA 2006). Strictly construing the PIP statute, a PIP insurer is not liable to judgment or for attendant attorney’s fees simply because it did not provide EOB’s within 30 days of receipt of the Plaintiff’s charges as the Plaintiff alleges. Rather, a PIP insurer is only required under the PIP statute to provide EOB’s when it chooses to deny or reduce a charge, and that is exactly what the Defendant did here.
LEGAL STANDARD FOR AN ENTRY OF SUMMARY JUDGMENT
17. Pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, Summary Judgment is proper when there is no genuine issue of material fact and defendant is entitled to judgment as a matter of law. Summary judgment is an appropriate and necessary means of terminating litigation short of a jury trial and it satisfies the constitutional right of access to the courts as a means of resolving civil disputes. Cassel v. Price, 396 So. 2d 258, 262 (Fla. 1st DCA 1981), review denied, 407 So. 2d 1102 (Fla. 1981). “So long as our system of laws recognizes a dividing line between conduct which may properly require a party to be subjected to the burden of trial and the risk on an adverse jury verdict for damages, and conduct which will not, the trial and appellate courts often have a duty, difficult as the task may be, of drawing that line.” Id. at 261.
18. Summary judgment is properly granted where the moving party conclusively demonstrates that no genuine issues of material fact exist between the parties and that the moving party is entitled to a judgment as a matter of law. Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966).
19. Here, as detailed above, it is clear that the Plaintiff is not entitled to a PIP Log from the Defendant, it was imputed knowledge of the contents of the subject policy and declarations page as its assignor had been previously provided with same. Also, the Defendant indicated it had provided the requested documents in its PIP pre-suit demand response letter. Finally, the Plaintiff is not entitled to judgment on its Count III for explanation of benefits forms as the Defendant complied with the PIP statute, which itself must be strictly construed.
WHEREFORE, as the Plaintiff is not entitled to the documents complained of in its Amended Complaint, the Plaintiff’s subject Motion for Summary Judgment is hereby DENIED.
