17 Fla. L. Weekly Supp. 1187a

Online Reference: FLWSUPP 1712CANA

Insurance — Personal injury protection — Standing — Assignment — Despite insurer’s half-hearted efforts to raise standing issue in timely manner, trial court abused its discretion by failing to address standing issue when raised in open court prior to trial and during post-trial hearing — Withdrawal of benefits — Independent medical examination — Error to conclude that date of IME cutoff letter, rather than date of IME, is date for termination of benefits — Notice of loss — Disclosure and acknowledgment letter — No error in limiting impact of deficient D&A form to disallowing claim for first date of treatment and awarding payment for subsequent dates of treatment

UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellant, v. LISANDRA CANAL, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-516 AP & 08-641 AP. L.C. Case No. 06-15175 CC 05 02. August 23, 2010. An Appeal from a decision rendered by the Miami-Dade County Court, Teretha Lundy Thomas, J. Counsel: Thomas L. Hunker, Office of the General Counsel, United Automobile Insurance Company, for Appellant. Dean M. Mitchell, for Appellee.

(Before, RODRIGUEZ, TUNIS and ARZOLA, JJ.)

(ARZOLA, J.) Appellee/Plaintiff Lisandra Canal (“Canal”) sued Appellant/Defendant United Automobile Insurance Company (“United”) for personal injury protection (“PIP”) benefits pursuant to an automobile accident that occurred on December 20, 2005. At the time that she submitted to both a chiropractic and medical examination on February 2, 2006, Canal was a 17 year old minor. After submitting to the required independent medical examinations (“IMEs”), Canal enlisted the aid of Custer Medical Center (“Custer Medical”) for treatment on February 10, 2006. It is alleged that Canal assigned her benefits to Custer Medical. On the same date as the assignment, Canal allegedly signed and dated a reassignment of her benefits as well as a revocation of her previous assignment. A copy of the revocation form was included in the record. The form was neither signed nor dated by Custer Medical. In addition, there are two Disclosure and Acknowledgment (D&A) Forms included in the record. Both were signed by Canal and her doctor. One form does not have the line filled in which describes the type of treatment administered to Canal on her first day of treatment, while the other form does.

United has presented four issues on appeal: 1) it contends that Canal has no standing to bring the action for PIP benefits; 2) that the trial court erred in concluding that the date of the cutoff letter, March 14, 2006, as opposed to the date that the IME was performed, February 2, 2006, serves as the date for the termination of benefits; 3) that the trial court erred when it limited the insurer’s disclosure and acknowledgement defense to the bill submitted for the first day of treatment; and 4) that the award of attorney’s fees and costs should be reversed.

Standing

United asserts that after making multiple requests for copies of any and all assignments, it was repeatedly told by Canal that there were none. However, during the deposition of Custer Medical’s corporate representative, United discovered that Canal had purportedly assigned her benefits to Custer Medial and subsequently executed a reassignment of benefits and revocation. United contends that it moved to amend its answer to include Canal’s lack of standing as an affirmative defense. United argues that it delivered a copy of the motion to amend to Canal and filed a copy with the court.

Several months passed and the motion to amend was never set for a hearing by United. The trial court convened a pre-trial conference to discuss with the parties the issues to be resolved at trial. United did not mention the standing issue at the conference, but instead assured the court that the only issue to be resolved was the reasonableness, relatedness and necessity of the medical bills (“RRN”). United subsequently attempted to have the trial court address the issue of standing before the beginning of trial. The trial court denied the request as untimely and ruled that the pleadings were closed. United again attempted to have the trial court address the standing issue during the motion for rehearing on the final judgment. The motion for rehearing was denied.

United contends that the trial court erred when it failed to consider the status of Canal’s standing both pre-trial and post-trial. United relies on Maynard v. Florida Board of Education, 998 So. 2d 1201 (Fla. 2d DCA 2009) for the proposition that the standing issue can be raised at any point prior to an appeal. In Maynard, the issue of standing was raised for the first time in a post-trial motion. The trial court in Maynard denied the motion. On appeal, the Second District Court concluded “. . . that the pertinent question [to ask] is whether the issue was raised at the trial court, not how it was raised.” Maynard, 998 So. 2d at 1206. While standing may not be raised for the first time on appeal, the Court further held that it need not necessarily be raised only by the means of an affirmative defense. Id. More importantly, for purposes of the instant case, the court in Maynard concluded that as long as it was raised at the trial court level, the standing issue could not be considered waived. Id.

This Court is aware that, in making its decision, the trial court may have considered United’s actions, including: 1) United’s failure to timely set for hearing the motion to amend to include the affirmative defense of standing; 2) United’s failure to take the opportunity to present the standing issue at the pre-trial conference; and 3) United’s subsequent attempt to raise the standing defense on the eve of trial. In an attempt to carry out its duties pursuant to the Florida Rules of Judicial Administration¹, and propel its caseload forward, the trial court determined that United waived its affirmative defense of standing by failing to act promptly and earnestly.

This Appellate Court is also troubled by United’s halfhearted efforts to raise the standing issue in a timely manner. While we are aware of the pressure that trial courts experience in trying to keep their calendars moving, existing case law supports United’s contention that the trial court erred when it failed to consider the standing issue once raised in open court prior to trial and during the post-trial hearing. As long as the standing issue is raised at the trial court level, no matter at what procedural point in the trial court process, the standing issue cannot be considered waived. Maynard, 998 So. 2d at 1207. Therefore, the trial court abused its discretion and erred when it failed to address United’s affirmative defense of standing. We reverse as to this issue.

Benefits Suspension Cutoff Notice Letter

United contends that the date that the IMEs were conducted, as opposed to the date of the IME cut-off notice letter, serves as the effective date for suspending benefits. This Appellate Court finds that existing case law supports the position taken by United. Both United Auto. Ins. Co. v. Professional Medical Group, Inc. a/a/o Fernando Marquez, 17 Fla. L. Weekly Supp. 515a (Fla. 11th Cir. Ct. App. April 8, 2010), and United Auto. Ins. Co. v. Prof Med. Group, Inc., a/a/o Mercedes Valientes, 16 Fla. L. Weekly Supp. 389a (Fla. 11th Cir. Ct. App. 2009) have addressed this issue and held that the date which controls is the date of the IME examination, not the date of the IME cutoff letter. See also United Auto. Ins. Co. v. Florida MRI, Inc. a/a/o Henry Salcedo, 15 Florida Law Weekly Supp. 581a (Fla. 17th Cir. Ct. App. March 7, 2008). This Court finds that the trial court erred. It was improper to base the final judgment computations for payment of treatment on the March 14, 2006 date of the IME cut-off letter, as opposed to the February 2, 2006 date of the IME examinations. Consequently, the trial court’s final judgment must be reversed as to this issue as well.²

Disclosure & Acknowledgement (D&A) Defense

United contends that the trial court erred when it limited United’s Disclosure and Acknowledgement (D&A) form defense to cover expenses for only the first day of treatment. United claims that such a limitation is not supported by the language in subsection (5)(e) of Fla. Stat. §627.736. United also argues that under the plain language of Fla. Stat. §627.736(5)(e), an insurance company is not placed on notice of a covered loss when the medical provider fails to provide a D&A form which does not comply with the statute. Consequently, this failure to provide notice should result in a total loss for the medical provider. In the instant case, United points out that Canal failed to list the treatment she received on the D&A form on the initial date of treatment. As a consequence, United contends that it should not be made to compensate Canal for the services rendered to her on any date

“There is no language in paragraph (5)(e) that even suggests that failure to provide the properly completed form to the insurer is failure to provide ‘notice of the covered loss’ to the insurer, or that such failure will render the provider’s bills not payable.” Florida Medical & Injury Center, Inc., v. Progressive Express Insurance Co., v. Prezioso West/East Chiropractic, etc., 29 So. 3d 329, 337-338 (Fla. 4th DCA 2010); See also United Automobile Insurance Company v. Professional Medical Group, Inc., a/a/o Gaston M. Botta, 26 So. 3d 21, 24 (Fla. 3d DCA 2010). This Appellate Court takes the same position that the Fourth District Court has taken in Prezioso. “If the Legislature had intended this result, it could have said so.” Prezioso, 29 So. 3d at 338. It is generally understood that courts are not at liberty to re-write statutes. Id.; See Seagrave v. State, 802 So. 2d 281, 287 (Fla. 2001). The appellate record indicated that the trial court addressed United’s D&A affirmative defense at a pre-trial hearing. During the hearing, the trial court was made aware of the fact that there had been two D&A forms submitted to United. Apparently, the first D&A form submitted by Canal lacked information regarding the treatment Canal received on her first day. The trial court was further informed that a second D&A form was sent to United providing the missing information about Canal’s first day of treatment. However, there was some question as to the authenticity of the second D&A form.

Taking these concerns into account, the trial court determined that the D&A form submitted for the first date of treatment did not satisfy the statute’s requirements. Consequently, the lower court decided that United would not be responsible for providing compensation for the first date of treatment. However, it did award compensation for subsequent dates of treatment, as permitted by section 627.736(5)(e)(9) of the Florida Statues. This subsection permits payment for treatment on subsequent dates where the treatment is supported by patient logs, as is the case here. The Florida Legislature has limited the disclosure and acknowledgment form’s applicability “only with respect to the initial treatment or service of the insured by a provider.” Fla. Stat. §627.736(5)(e)(9) (2009); Reese King v. United Automobile Insurance Company, 15 Florida Law Weekly Supp. 430a (Fla. 11th Cir. Ct. Feb. 28, 2008); See also Prezioso West/East Chiropractic, etc., 29 So. 3d at 337-338. Accordingly, this Appellate Court affirms the trial court’s decision with regard to awarding payment for treatment rendered to Canal subsequent to the initial date of treatment on February 10, 2006.

Attorney’s Fees

Canal seeks attorney’s fees for this appeal pursuant to section Fla. Stat. §627.428. Canal has not prevailed on the appellate issues involving: 1) standing, and 2) the cutoff date for termination of benefits. On the other hand, this Court has found that Canal has prevailed on the D&A form issue.

Accordingly, we find that if Canal prevails on the underlying PIP claim at the trial court level, it is entitled to recover a portion of its appellate attorney’s fees with regard to the D&A form issue. See Folta v Bolton, 493 So. 2d 440, 442 (Fla. 1986) (in a multicount action, where each claim is separate and distinct and would support an independent action, as opposed to being an alternative theory of liability for the same wrong, the prevailing party on each distinct claim is entitled to an award of attorney’s fees for those fees generated in connection with that claim”); Zaremba v Klinger Fla. Co., 550 So. 2d 1131 (Fla. 3d DCA 1989) (plaintiffs were the prevailing parties on only one count of their nine-count complaint, and, under the circumstances of the case, were entitled to appellate attorney’s fees generated only in connection with that one count); Great Southwest Fire Ins. Co. v. DeWitt, 458 So. 2d 398 (Fla. 1st DCA 1984) (appellee entitled to a portion of appellate fees for partial recovery on the underlying case below).

WE REVERSE the lower court’s order awarding Canal’s attorney’s fees and costs. Where a final judgment is no longer enforceable, an attorney fee award in the lower court, based on that judgment is likewise not enforceable. See Nevarez v. Friskney, 819 So.2d 992, 993 (Fla. 5th DCA 2002); Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999).

Therefore, this matter is REVERSED in part, AFFIRMED in part, and REMANDED to the trial court with the direction that it conduct the necessary proceedings consistent with this opinion. (RODRIGUEZ and TUNIS, JJ. concur.)

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¹2.215(f) (Duty to Rule within a Reasonable Time) and 2.215(h) (Neglect of Duty).

²The issue raised by Canal as to her status as a minor at the time she executed the relevant documents can be addressed by the trial court on remand.