17 Fla. L. Weekly Supp. 42b
Online Reference: FLWSUPP 1701CAST
Insurance — Personal injury protection — Explanation of benefits — Failure to provide — Where medical provider, as assignee of insured, was on notice of insurer’s suspension of benefits pursuant to independent medical examination cut-off prior to providing treatment to insured, insurer was not required to provide EOBs for claims submitted by provider
FT. MYERS INJURY CENTER, L.L.C., (a/a/o Olga Castro), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502007SC016444XXXX SB RD. September 23, 2009. James L. Martz, Judge. Counsel: Lindsay Porak, for Plaintiff. Nicholas A. Zacharewski, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT AS TO COUNT II OF PLAINTIFF’S COMPLAINT
This matter having come before the Court on August 31, 2009 for hearing on Plaintiff’s Motion for Final Summary Judgment as to Count II of Plaintiff’s Complaint. Present before the Court appeared counsel for the Plaintiff, Lindsay Porak, Esquire, and counsel for the Defendant, Nicholas A. Zacharewski, Esquire. Having heard arguments of Counsel, reviewed the pleadings, motions, and evidence before the Court and being otherwise fully advised in the premises, the Court finds as follows:
1. Plaintiff, FT. MYERS INJURY CENTER, L.L.C., filed the above lawsuit alleging several causes of action against Defendant, UNITED AUTOMOBILE INSURANCE COMPANY.
2. Count I of Plaintiff’s Complaint alleges the failure to pay personal injury protection benefits for treatment allegedly rendered to Olga Castro arising out of a motor vehicle accident.
3. Count II of Plaintiff’s Complaint alleges a failure to provide an explanation of benefits pursuant to Florida Statute § 627.736(4)(b).
4. Count III of Plaintiff’s Complaint alleges Defendant’s Failure to Comply with Florida Statute § 627.736.
5. Prior to the hearing on Plaintiff’s Motion for Summary Judgment on Count II, Plaintiff withdrew counts I and III of Plaintiff’s Complaint.
6. It is undisputed that on or about October 19, 2006, the insured, Olga Castro, attended independent medical examinations with Dr. Joseph Marfisi, D.C. and Dr. Pierre Gaston, M.D as requested by United Automobile Insurance Company.
7. Based upon the results of the examinations, United Automobile Insurance Company, suspended further benefits for chiropractic and medical treatment.
8. It is undisputed that on November 7, 2006, United Automobile Insurance Company sent two letters to Olga Castro and her attorney’s office, Kanner Pentaluga regarding the results of the examinations. The first letter advised that United Automobile Insurance Company suspended further medical treatment after October 19, 2006 based upon the results of the independent medical examination conducted by Dr. Pierre Gaston, M.D. The second letter advised that United Automobile Insurance Company suspended further chiropractic treatment after October 19, 2006 based upon the results of the independent medical examination conducted by Dr. Joseph Marfisi, D.C.
9. Nine months after receipt of the correspondence suspending further treatment, Olga Garcia, began treating with Fort Myers Injury Center, L.L.C. and received treatment on August 29, 2007; August 30, 2007; September 4, 2007; and September 11, 2007. Further, Ms. Garcia assigned her rights under the policy of insurance with United Automobile Insurance Company to Fort Myers Injury Center, L.L.C.
10. No correspondence was sent from United Automobile Insurance Company to Fort Myers Injury Center, L.L.C. regarding the treatment provided to Olga Garcia within thirty days of receipt of the subject medical bills. On or about November 1, 2007, United Automobile Insurance Company responded to the notice of intent to initiate litigation for personal injury protection benefits pursuant to Florida Statute § 627.736(11) sent by the Law Office of Stephen D. Deitsch, P.A. on behalf of Fort Myers Injury Center, L.L.C. for the treatment rendered to Olga Garcia.
11. Florida Statute § 627.736(4)(b), provides in pertinent part,
“When an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessary of the denied treatment or to explain the reasonableness of the reduced charge, provided that this shall not limit the introduction of evidence at trial; and the insurer shall include the name and address of the person to whom the claimant should respond and a claim number to be referenced in future correspondence.
Fla. Stat. § 627.736(4)(b)(2006)
12. Under Florida Law it is clear that an assignee stands in the shoes of his assignor under a contract. All Ways Reliable Building Maintenance, Inc. v. Moore, 261 So.2d 131 (Fla. 1972); Dove v. McCormick, 698 So.2d 585 (Fla. 5th DCA 1997). See also Professional Consulting Services, Inc. v. Hartford Life and Accident Ins. Co., 849 So. 2d 446 (Fla. 2nd DCA 2003).
13. This Court finds that the correspondence sent by United Automobile Insurance Company on November 7, 2006 and November 1, 2007 did not contain an itemized statement of each individual charge by CPT code. The correspondence dated November 7, 2006 denies all subsequent treatment from October 19, 2006 forward. The correspondence dated November 1, 2007 contains the total charge billed by Plaintiff and the amount allowed by Defendant for the subject medical treatment.
14. This Court finds that Plaintiff, Fort Myers Injury Center, L.L.C., is an assignee of Olga Castro under the subject policy of insurance. This Court further finds that Plaintiff as assignee of Olga Castro was on notice of the IME cutoff of October 19, 2006 prior to providing treatment to Olga Castro from August 29, 2007 through September 11, 2007.
15. This Court finds that as Fort Myers Injury Center, L.L.C. was on notice of United Automobile Insurance Company suspending benefits based on the independent medical examinations, that United Automobile Insurance Company was not required to provide further explanations of benefits and/or an itemized statement for each claim submitted by Fort Myers Injury Center, L.L.C. for treatment provided to Olga Castro.
16. This Court finds that Plaintiff, as subrogee of all rights and obligations of Olga Castro, was in law on notice of the IME cut off. As such, United Automobile was not required to provide an itemized specification within thirty days of receipt of each bill from Plaintiff, Fort Myers Injury Center, L.L.C.
Therefore it is accordingly ORDERED and ADJUDGED that Plaintiff’s Motion for Final Summary Judgment as to Count II of Plaintiff’s Complaint is hereby Denied and Summary Judgment is hereby entered in favor of Defendant and Plaintiff shall go hence without day.
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FINAL JUDGMENT IN FAVOR OF DEFENDANT
THIS CAUSE having been presented upon Plaintiff’s Motion for Final Summary Judgment as to Count II of Plaintiff’s Complaint, and the Court having granted same by Order dated August 31, 2009;
IT IS ADJUDGED:
Defendant is the prevailing party in the above referenced matter. The Plaintiff shall take nothing by this action. The Court hereby retains jurisdiction for the purposes of determining any motion to tax fees and costs.
