15 Fla. L. Weekly Supp. 565a
Insurance — Personal injury protection — Coverage — Medical expenses — Limitation to amount pled — Where medical provider claimed PIP benefits not to exceed $1,500 in declaration, trial court erred in entering summary judgment in excess of amount pled — Provider should have amended complaint to claim entire amount of bills and may do so on remand — Affirmative defenses — Application of deductible is not affirmative defense that must be raised and proved by insurer
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. XCELLENT MEDICAL SERVICES, INC., a/a/o Gil Ajuria, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 06-365 AP. L.C. Case No. 03-0946 SP 05. April 9, 2008. On appeal from final summary judgment by the County Court of the Eleventh Judicial Circuit of Miami-Dade County. Counsel: Lara J. Edelstein, United Automobile Insurance Company, for Appellant. Stuart B. Yanofsky, for Appellee.
(Before Gordon, Leesfield and Cohen, JJ.)
OPINION
(Per Curiam.) This is a PIP case subject to § 627.730, Fla. Stat., et seq. Gil Ajuria was injured and received medical treatment from XCELLENT MEDICAL SERVICES. As assignee, XCELLENT attempted to collect from Ajuria’s insurance provider, UNITED AUTOMOBILE INSURANCE COMPANY. When UNITED refused to pay, XCELLENT sued for overdue no-fault benefits “that exceed One Hundred and 01/100 Dollars ($100.01), but do not exceed One Thousand Five Hundred Dollars ($1,500.00).”
On May 3, 2005, XCELLENT moved for “partial summary judgment in its favor and against Defendant United Automobile Insurance Company for amounts billed.” The attached bills came to $8,944.00. UNITED filed no response to XCELLENT’s motion.
Approximately a year after XCELLENT filed its motion for partial summary judgment, the parties came before the trial court on July 26, 2006. In argument before the trial court, UNITED contended XCELLENT’s original pleading limited XCELLENT’s recovery to no more than the amount sought in the original pleading. UNITED held to this line of argument even as it acknowledged that it had notice of all the bills. UNITED also conceded that XCELLENT would be free, at trial, to conform the pleadings to the evidence.
Thereafter, the trial court granted partial summary judgment in favor of XCELLENT and ordered UNITED to reimburse XCELLENT for all bills attached to the summary judgment motion. This appeal followed.
The standard of review for a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000). Summary Judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). If the slightest doubt exists, summary judgment must be reversed. Sierra, 767 So. 2d at 525 (citing Hancock v. Department of Corrections, 585 So. 2d 1068 (Fla. 1st DCA 1991)).
It has been said that “[t]he ad damnum clause of a declaration is to give notice to the defendant of the extent of the plaintiff’s claim, and it is well established that a plaintiff cannot recover greater damages than are claimed in his declaration.” Seaboard Air Line Ry. v. Brown, 157, 81 So. 107 (Fla. 1919). Further, it is clear “[a] trial court may not decree relief that has neither been requested by way of pleading nor tried by consent. Conidaris v. Cresswood Servs., Inc., 779 So. 2d 518, 519 (Fla. 2d DCA 2000). It is irrelevant that XCELLENT, under Florida Rule of Civil Procedure 1.190, was free to amend its complaint to conform to the evidence adduced at trial. This is specifically so because XCELLENT made no attempt to conform its complaint. XCELLENT should have done so and, if it wishes to make claims for the entire amount, should do so on remand. In sum, the trial court erred in awarding damages in excess of the amount pled.
Independently at issue is whether an alleged PIP deductible represents an affirmative defense and, if so, whether the failure to plead that defense constitutes a waiver thereof. On the one hand, a PIP defendant is not required to provide evidence of paid and pending claims prior to suit being filed. Southern Group Indem., Inc. v. Humanitary Health Care, Inc., 2008 WL 649577 (Fla. App. 3 Dist.) [33 Fla. L. Weekly D752a]. Thus, the existence of an applicable PIP deductible is information particularly within the knowledge of the PIP defendant and which one would expect to be pled as an affirmative defense. Wool Wholesale Plumbing Supply, Inc. v. Abdo, 365 So. 2d 216, 219 (Fla. 4th DCA 1978) (citing 25 Fla. Jur. Pleadings, § 77, pp. 237-238) (“matters of avoidance which are peculiarly within the knowledge of the defendant-owner . . . should be raised as affirmative defenses).
Regardless, we read Digital Medical Diagnostics v. United Automobile Insurance Co., 958 So. 2d 505 (Fla. 3d DCA 2007) to hold otherwise. There, the court wrote that “[t]he application of the deductible provision in a policy of insurance is not a defense which must be raised as an affirmative defense but is, in fact, a basic part of the policy of insurance.” Id. at 507 (citing Appalachian Ins. Co. v. United Postal Sav. Ass’n, 422 So. 2d 332, 334 (Fla. 3d DCA 1982)) (“a deductible provision, being as much a basic part of the policy as the provision which sets the maximum amount of money recoverable under the policy, is not an affirmative defense which must be proved by the insurer”).
Based upon the foregoing, the trial court’s ruling is REVERSED and REMANDED. If XCELLENT intends to seek the entire amount billed it must amend its complaint to so state. Further, the trial court shall proceed in accordance with Digital Medical, 958 So. 2d at 505. Finally, this Court determines that XCELLENT has not prevailed for purposes of section 627.428, Florida Statutes and therefore DENIES Appellee’s Motion for Appellate Attorney’s Fees.
