15 Fla. L. Weekly Supp. 863a
Insurance — Personal injury protection — Declaratory judgment — While PIP statute does not require insurer to produce PIP log on presuit request from assignee/medical provider, on remand county court may address argument that furnishing log was required by policy — Insurer’s production of PIP log after provider filed suit is not tantamount to confession of judgment — Attorney’s fees — Appellate — Offer of judgment — Where real issue in case was whether insurer was obligated to produce PIP log, case was not action for damages to which offer of judgment statute applies, and insurer’s motion for appellate attorney’s fees is denied
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, vs. HEATHER SCHETTER, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1-06-05. L.C. Case No. 2005-CC-005460. June 26, 2008. Appeal from the County Court, for Orange County, Jerry L. Brewer, Judge. Counsel: Hinda Klein, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellant. Bruce H. Kauffman, Law Offices of Peter A. Shapiro and Bruce H. Kauffman, P.A., Orlando, for Appellee.
(Before MUNYON, WATTLES and SMITH, M., JJ.)
ORDER REVERSING FINAL DECLARATORY JUDGMENT
I. INTRODUCTION
(PER CURIAM.) This is an appeal by the defendant below, State Farm Mutual Automobile Insurance Company (“Appellant” or “State Farm”), of the trial court’s Final Order Granting Plaintiff’s Motion for Summary Judgment in favor of Heather Schetter (“Appellee” or “Schetter”). This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A). The issue in this appeal is whether a PIP1 carrier must provide a PIP log, pre-suit, to its insured. We dispense with oral argument. Fla. R. App. P. 9.320.
II. FACTS
Heather Schetter was involved in an automobile accident on August 3, 2004, and received medical treatment for her accident-related injuries. At the time of the accident, State Farm insured Schetter and her policy included PIP coverage. PIP benefits were paid by State Farm.
In a letter dated February 22, 2005, Schetter, through counsel, requested that State Farm “[p]ursuant to applicable policy of insurance and the PIP statute,” provide to her, within thirty days, a copy of its PIP payout sheet. (R. 46.) This document is commonly known as a “PIP log.”
Thirty days passed and State Farm did not produce the PIP log. On April 15, 2005, Schetter filed the complaint in the instant lawsuit. In Count I, Schetter sought a declaratory judgment that State Farm was obligated to provide a PIP log to her pursuant to section 627.736(6)(d), Florida Statutes, as well as the applicable policy of insurance. Following Schetter’s institution of suit, State Farm produced the PIP log. Schetter voluntarily dismissed Counts II and III of her complaint and moved for summary judgment on Count I. State Farm did not file opposition to the summary judgment motion but appeared for oral argument and was heard. On November 23, 2005, the County Court entered an order granting Schetter’s motion for summary judgment and entitlement to counsel fees. On January 9, 2006, the County Court entered a final declaratory judgment on Count I of Schetter’s complaint. State Farm filed this appeal.
III. PARTIES’ POSITIONS
Schetter contends that by providing the PIP log after she filed suit, State Farm effectively confessed judgment. Alternatively, Schetter contends that even if State Farm did not confess judgment, she is entitled to judgment as a matter of law because section 627.736(6)(d), Florida Statutes, as interpreted by numerous county courts and circuit courts sitting in an appellate capacity (including this one), requires a PIP carrier to provide its payment log, pre-suit, upon the insured’s request.
State Farm argues that the trial court erred in granting summary judgment to Schetter because her supporting affidavits were not submitted in a timely manner. Even if the court properly considered the affidavits filed on Schetter’s behalf, State Farm urges that “she failed to meet her burden of proof of the nonexistence of a factual dispute.” (Appellant Initial Br. 11.) State Farm contends that Schetter’s proofs on the summary judgment motion did not establish that it had confessed judgment because they did not demonstrate either when State Farm received Schetter’s request for the PIP log or when it responded to that request. State Farm also disputes Schetter’s contention that pre-suit production of a PIP log is required either by statute or its policy. The applicable statute, section 627.736(6)(d), does not, State Farm notes, mention the term “PIP log” or an equivalent but requires only, in State Farm’s view, pre-suit production “of information relating to payment of policy benefits.” (Id. at 12.) Also, State Farm contends on appeal that a finding of a policy requirement of production of a PIP log is not supportable because Schetter did not make the policy part of the motion record. Finally, State Farm argues that because it undisputedly paid all PIP benefits owing, Schetter was not required to file suit and therefore State Farm did not confess a judgment to which, it contends, Schetter was never entitled.
IV. STANDARD OF REVIEW
The standard of appellate review of a summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
V. DISCUSSION
Section 627.736(6)(d), Florida Statutes provides, “The injured person shall be furnished, upon request, a copy of all information obtained by the insurer under the provisions of this section, and shall pay a reasonable charge, if required by the insurer.” The title of subsection 6 of section 627.736 is “Discovery of facts about an injured person.” This subsection permits the carrier to informally obtain information about a claimant, § 627.736(6)(a), (b), Fla. Stat. (2005), and if this is not successful, to bring an action to compel production of the information sought. § 627.736(6)(c), Fla. Stat. (2005).2
In ruling that State Farm was obligated by this statutory provision to provide a PIP log to Schetter upon request before she instituted suit, the County Court relied upon that then-prevailing view which was followed by numerous county courts and circuit courts, including this one, statewide. Since that time, district courts of appeal have weighed in on this issue and have adopted a contrary view.
The Fifth District Court of Appeal most recently addressed the issue of a PIP carrier’s duty to produce a PIP log in State Farm Mutual Automobile Insurance Co. v. Florida Emergency Physicians, 978 So. 2d 197 (Fla. 5th DCA 2008). There, the court of appeal granted a carrier’s petition for a writ of certiorari, quashed a circuit court order and directed the lower court to reconsider its decision in light of its decision in GEICO General Insurance Co. v. Florida Emergency Physicians, 972 So. 2d 966 (Fla. 5th DCA 2007). The GEICO court held that “the circuit court’s conclusion that [the PIP carrier] was required to provide a PIP log to [its insured’s assignee] is not supported by Florida law.” Id. at 969.3 In so holding, the GEICO panel quoted at length the opinion of the Third District Court of Appeal in Southern Group Indemnity, Inc. v. Humanitary Health Care, 3D06-2788, 32 Fla. L. Weekly D1396 (Fla. 3d DCA May 30, 2007):
Subsection 627.736(6) does not provide for nor address the insured’s right to access documents prepared internally by the insurer. As the insurer’s PIP payout log is a document generated by the insurer and is not a document the insurer obtained pursuant to subsection 627.736(6), the circuit court, acting in its appellate capacity, applied the incorrect law by finding that: (1) paragraph 627.736(6)(d), Florida Statutes (2003), requires an insurer to provide its PIP payout log to an insured or the insured’s assignee, presuit . . . .
GEICO Gen. Ins. Co. v. Fla. Emergency Physicians, 972 So. 2d at 969 (quoting S. Group Indem., Inc. v. Humanitary Health Care, Inc., 3D06-2788, 32 Fla. L. Weekly at D1397).4
Indeed, in Southern Group Indemnity, the court of appeal did “not merely disagree with the circuit court’s interpretation of paragraph 627.736(6)(d), [it] conclude[d] that the statute is completely inapplicable.” S. Group Indem., Inc. v. Humanitary Health Care, 975 So. 2d 1247, 1250 (Fla. 3d DCA 2008).
Although not quoted by the Fifth District in its GEICO opinion, the Southern Group Indemnity panel of the Third District Court of Appeal also held that an insurer’s provision of a PIP log after the insured’s assignee has filed suit, is not tantamount to a confession of judgment. S. Group Indem., Inc. v. Humanitary Health Care, 975 So. 2d at 1250. While Southern Group Indemnity concerned a request for a PIP log by an insured’s assignee, its holding applies to insureds, themselves, as “[f]ollowing an assignment, the assignee stands in the shoes of the assignor.” Leesburg Cmty. Cancer Ctr. v. Leesburg Reg’l Med. Ctr., Inc., 972 So. 2d 203, 206 (Fla. 5th DCA 2007).
It is clear that a judgment declaring that section 627.736(6)(d) requires State Farm to produce a PIP log to Schetter, pre-suit, must be reversed. What is not clear, however, is the extent to which the declaratory judgment appealed from was based upon section 627.736(6)(d). Count I of Schetter’s complaint and her motion papers assert that she is entitled to the PIP log on both statutory (section 627.736(6)(d)) and contractual (policy of insurance) grounds. The parties devote almost all of their efforts to arguments concerning section 627.736(6)(d). Further, Schetter’s policy was not included with her motion papers, so it is difficult to see how the court below could have granted summary judgment on that basis as the contractual argument was ill-supported. In view of the recent district courts of appeal decisions on this issue, the final judgment in Schetter’s favor must be reversed to the extent it is based on Section 627.736(6)(d) and this case must be remanded. While we hold that section 627.736(6)(d) does not require State Farm to produce its PIP log, the County Court may, upon proper application, specifically address any contract law arguments.
The County Court also found that Schetter was entitled to her counsel fees pursuant to section 627.428, Florida Statutes. That statute provides in relevant part that:
Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
§627.428, Fla. Stat. (2005).
Because we reverse the judgment entered by the County Court, there is no longer a “judgment or decree . . . against an insurer and in favor of any named . . . insured” and the trial court’s fee award cannot stand.
VI. MOTIONS FOR APPELLATE ATTORNEY’S FEES
Schetter has filed a timely motion seeking an award of appellate counsel fees contending that “[i]f [she] prevails on this appeal, [she] is entitled to an award of reasonable attorney’s fees under sections 627.736 and 627.428, Florida Statutes.” (Appellee Mot. for Appellate Attorney’s Fees 1.) Schetter has not prevailed. Thus, her motion for appellate counsel fees is denied.
State Farm also moves to recover its appellate counsel fees. The basis for this request is Schetter’s rejection of its proposal for settlement made pursuant to section 768.79, the so-called offer of judgment statute. On September 6, 2005, State Farm offered Schetter $10.00 if she would, in return, voluntarily dismiss her case, in its entirety, with prejudice. Schetter withdrew Counts II and III of her complaint which were based upon allegations of violation of the PIP statute and breach of the policy of insurance, respectively. Count I, an action for declaratory judgment, went forward. In opposing State Farm’s counsel fee motion, Schetter argues that the offer of judgment statute, by its terms, applies only to a “civil action for damages.” §768.79(1), Fla. Stat. (2005). To determine whether a case is a “civil action for damages” in the context of the offer of judgment statute, courts look to whether the “real issue” is one for damages or declaratory relief. Nat’l Indem. Co. of the South v. Consol. Ins. Servs., 778 So.2d 404, 408 (Fla. 4th DCA 2001). Here, Schetter voluntarily withdrew Counts II and III of her complaint, leaving only the declaratory judgment claim. Even before she formally withdrew these counts, the “real issue” in this case concerned State Farm’s duty to produce the PIP log. In a motion for summary judgment filed in July 2005, Schetter stated that “by [State Farm’s] production of the PIP payout log to [Schetter], the very relief prayed for within her Complaint, Count I Declaratory Judgment, Count 2 Breach of Contract and Count 3 Violation of Section 627.736(6)(d), Florida Statutes, [State Farm] has confessed judgment on the issue at bar and, in effect, abandoned all defenses in this matter.” (R. 16.) In a motion to abate discovery filed in August 2005, Schetter contended that “[o]n June 16, 2005, [State Farm] provided the PIP payout log to Plaintiff, which was specifically the relief sought and at issue within Plaintiff’s three-count Complaint in this case.” (R. 21.) We find that the “real issue” in this case was whether State Farm was obligated to produce the PIP log and therefore this was not an “action for damages.” As a result, the offer of judgment statute does not apply and State Farm’s counsel fee application is denied.
Accordingly, it is hereby ORDERED and ADJUDGED that:
1) The trial court’s Final Declaratory Judgment in favor of appellee, Heather Schetter, be and hereby is REVERSED; and
2) Appellee, Heather Schetter’s motion for appellate counsel fees be and hereby is DENIED;
3) Appellant, State Farm Mutual Automobile Insurance Company’s motion for appellate counsel fees be and hereby is DENIED; and
4) This matter be and hereby is REMANDED to the trial court for further proceedings not inconsistent with this Order.
__________________
1“PIP” is an acronym for “personal injury protection.” With limited exception, “each motor vehicle owner or registrant required to be licensed in Florida is required to carry a minimum amount of personal injury protection, or PIP insurance, for the benefit of the owner and other designees.” Warren v. State Farm Mut. Auto. Ins. Co., 899 So. 2d 1090, 1094 (Fla. 2005). This coverage includes benefits for accident-related medical expenses, disability (lost wages) and death. § 627.736(1)(a),(b),(c), Fla. Stat. (2005).
2Specifically, Section 627.736(6)(a) permits the insurer to obtain a sworn statement of the injured person’s earnings from the period of the personal injury and for a reasonable period before the injury. Section 627.736(6)(b) allows an insurer to acquire medical information related to the injured party’s history, condition, treatment, dates, and costs of such treatment from the medical provider. Under Section 627.736(6)(c) an insurer may seek relief from the courts if a dispute arises as to what information the insurer is entitled to receive from the insured’s employer or medical provider.
3Reference to the Fifth District Court of Appeal’s GEICO decision corresponds to GEICO General Insurance Co. v. Florida Emergency Physicians, 972 So. 2d 966 (Fla. 5th DCA 2007). Several weeks later, that court decided another case involving the same parties and the same issue of an insured’s pre-suit entitlement to a PIP log, with the same result — the insured (or an assignee) is not so entitled under section 627.736(6)(d). See GEICO Gen. Ins. Co. v. Fla. Emergency Physicians, 972 So. 2d 1013 (Fla. 5th DCA 2008).
4Following the release of GEICO by the Fifth District Court of Appeal, the Third District Court of Appeal granted a motion for rehearing in Southern Group Indemnity, Inc. v. Humanitary Health Care, withdrew its prior opinion and issued a second opinion in that case. S. Group Indem., Inc. v. Humanitary Health Care, 975 So. 2d 1247 (Fla. 3d DCA 2008). The above quoted language relied upon by the Fifth District in GEICO, appeared again in the second Southern Group Indemnity opinion in which the same result was reached but with two judges dissenting from the court’s denial of rehearing en banc. Id. at 1251.
