16 Fla. L. Weekly Supp. 47a
Insurance — Personal injury protection — Declaratory judgment — Insurer is obligated to furnish copy of compulsory medical examination reports, transcript of examination under oath, and non-privileged portions of PIP file to insured — Insurer erroneously applied deductible to benefits owed to insured — Insurer is obligated to compensate insured for lost wages and mileage associated with attendance at CMEs and EUO — Insured was justified in returning checks tendered by insurer that reflected erroneous application of deductible and contained notation that they were “full and final payment”
JACKIE LEE WILBANKS, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 07-7882-CI, Sec. 19. October 7, 2008. Amy M. Williams, Judge. Counsel: Frank DiGioia; and Carl J. Ohall, Tampa Bay Legal Center, P.A., Brandon, for Plaintiff. Matthew Brumley, for Defendant.
FINAL SUMMARY JUDGMENT
This matter came before the Court with the Defendant having confessed judgment on Counts 1, 4, 5, 6, and 7. In addition, the Court previously granted Summary Judgment in favor of the Plaintiff on Counts 2 and 3. The Court having reviewed the file and being fully advised in the premises, the following findings are made.
FACTUAL BACKGROUND
The Defendant insured the Plaintiff with No Fault Insurance (PIP) for the February 21, 2007 motor vehicle accident in which the Plaintiff was injured. As a result of the accident, Plaintiff treated for his injuries with several medical providers, including Tyrone Injury and Wellness Center.
On May 24, 2007, a demand for payment of certain overdue bills in the amount of $2,064.00 plus statutory interest, penalties and postage was made by the Plaintiff in accordance with Florida Statute 627.736(11). On June 5, 2007, a demand for payment of certain overdue bills in the amount of $380.00 plus statutory interest, penalties and postage was made by the Plaintiff in accordance with Florida Statute 627.736(11). On June 6, 2007, the Defendant remitted checks in payment of those bills and other bills, but applied a $1,000.00 deductible such that the payments made did not represent 80% of the reasonable and customary charges. Further, the checks remitted by the Defendant contained language that conditioned the payments as “Full and Final Payment.” In response, the Plaintiff promptly returned the checks to the Defendant requesting that they be reissued without such condition and without application of a deductible and that the interest, penalties and postage be recalculated to an amount consistent with the date the Defendant issued payment. The Defendant failed to issue any payment (such is the subject of Counts III and V of the Plaintiff’s Complaint seeking declaratory relief and Count VII seeking damages for the Defendant’s breach of contract).
On April 9, 2007, the Plaintiff submitted a claim to the Defendant for lost earnings. On May 18, 2007, a second demand for payment of lost earnings in the amount of $882.50 plus interest, penalties and postage, was made by the Plaintiff in accordance with Florida Statute 627.736(11). The Defendant failed to issue any payment to the Plaintiff for lost wages (such is the subject of Count VI of the Plaintiff’s Complaint seeking damages for the Defendant’s breach of contract).
On June 15, 2007, the Plaintiff presented a demand in the total sum of $265.54 for payment of his mileage and lost wages associated with his attendance at the examination under oath (EUO) and the three compulsory medical examinations (CME’s) scheduled by the Defendant. The Defendant failed to issue any payment relative to this demand (such is the subject of Count IV of the Plaintiff’s Complaint seeking declaratory relief).
On May 4, 2007, and again on May 30, 2007, the Plaintiff demanded a copy of the CME reports and the EUO transcript. The Defendant complied in providing one report, specifically the report of Dr. Valen pertaining to his June 6, 2007 examination of the Plaintiff, but failed to provide the two other CME reports or the EUO transcript (such is the subject of Count II of the Plaintiff’s Complaint seeking declaratory relief).
In addition, the Plaintiff on June 15, 2007, demanded a copy of the Defendant’s PIP file in accordance with Florida Statute 627.736. The Defendant failed to comply (such is the subject of Count I of the Plaintiff’s Complaint seeking declaratory relief).
On April 3, 2008, this Court granted Summary Judgment on Counts II and III of Plaintiff’s Complaint and awarded Plaintiff attorney’s fees and costs for bringing this action, an Order having been entered on May 8, 2008. On April 28, 2008, the Defendant confessed judgment on the remaining counts, to wit, Counts I, IV, V, VI and VII, and agreed to Plaintiff’s entitlement to attorney’s fees and costs.
On July 14, 2008, Defendant issued payment for the remaining PIP benefits satisfying its obligations for the overdue medical and wage benefits sought by Plaintiff in this lawsuit. Also, on July 14, 2008, Defendant issued payment in the agreed upon amount of $265.54 in reimbursement of the Plaintiff’s lost wages and mileage costs associated with the Plaintiff’s attendance at the three compulsory medical examinations and examination under oath required by the Defendant.
It is therefore Ordered and Adjudged as Follows:
1. That Plaintiff is entitled to the declaratory relief sought in Count I of his Complaint and the Defendant shall provide the Plaintiff with a copy of the non-privileged portions of its PIP file;
2. The Plaintiff is entitled to the declaratory relief sought on Count II of his Complaint and Court declares that the Defendant is obligated by Florida law to provide the Plaintiff with all Compulsory Medical Examination reports requested and a copy of a transcript of his Examination Under Oath.
3. The Plaintiff is entitled to the declaratory relief sought on Count III and the Court declares that the Plaintiff’s PIP policy with the Defendant is not subject to a deductible and the Defendant erroneously applied a deductible to benefits owed by the Defendant.
4. The Plaintiff is entitled to the declaratory relief sought on Count IV of his Complaint and the Court declares that the Defendant is obligated under Florida law to compensate the Plaintiff for his lost wages and mileage associated with his attendance at the three compulsory medical examinations (CME’s) and the examination under oath (EUO) required of him by the Defendant. Such payment shall represent an administrative cost to the Defendant and shall not reduce in any manner the PIP benefits otherwise available to the Plaintiff.
5. The Plaintiff is entitled to the declaratory relief sought on Count V of his Complaint and Court declares that the Plaintiff was justified in returning the checks tendered by the Defendant as they contained language that characterized the payments as “full and final payment” and that the Defendant was obligated to reissue the checks to the Plaintiff without such condition, and without the application of a deductible.
6. The Plaintiff is entitled to his damages claimed under Counts VI and VII of his Complaint for overdue and unpaid lost wages and medical expenses. Defendant has satisfied this obligation in full by the payment of the remaining PIP coverage together with interest paid in an amount agreed to between the parties.
7. That the Plaintiff is entitled to recover attorney’s fees and costs and the Court reserves jurisdiction to determine the amount if the parties cannot reach a mutual agreement.
