18 Fla. L. Weekly Supp. 1198a
Online Reference: FLWSUPP 1811MOOR Insurance — Personal injury protection — Delay in payment — Request for information or documentation — Where medical provider made no response to insurer’s request for information and documentation, insurer had no option but to consider claim tolled — Issue of whether insurer has regular practice of requesting additional information is not ripe in absence of finding of breach of contract — Court will not abate action for unpaid bills to allow provider to attempt belatedly to satisfy request for information and documentation to avoid entry of summary judgment — Insurer’s motion for summary judgment is granted
BEST LINE MEDICAL CENTER, INC., as assignee of Amanda Moore, Plaintiff, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 10-033419. September 17, 2011. Herbert M. Berkowitz, Judge.
ORDER GRANTING SUMMARY JUDGMENT AGAINST PLAINTIFF
THIS CAUSE having come before the Court on Defendant’s Motion for Summary Judgment and Incorporated Memorandum of Law, and after having considered the arguments of counsel and reviewing the record evidence, the Court finds as follows:
I. Undisputed Facts
1. Defendant issued a personal automobile insurance policy to Amanda Moore which provided Personal Injury Protection (hereinafter (“PIP”) benefits subject to the terms and conditions of the policy and as otherwise provided for by Florida Statutes, §627.736.
2. On December 19, 2009, while the aforementioned policy was in full force and effect, Ms. Moore was purportedly involved in a motor vehicle accident while occupying her vehicle.
3. As a result of the aforementioned motor vehicle accident, it was alleged that Ms. Moore sought treatment with the Plaintiff.
4. Best Line Medical Center, Inc., pursuant to an assignment of benefits executed by Ms. Moore, submitted claims to Defendant seeking direct payment of PIP benefits for dates of service from December 22, 2009 through January 15, 2010. The Defendant received those CMS-1500 forms on or about January 26, 2010.
5. The aforementioned dates of service were never paid by Defendant.
6. Instead, on February 2, 2010 (less than 30 days from receipt of the medical bills for the first date of service at issue in this litigation), Defendant requested additional documentation and information from Best Line Medical Center, Inc., regarding the history, condition, treatment and costs of treatment purportedly provided to Ms. Moore pursuant to Florida Statutes, §627.736(6)(b).
7. It is undisputed that Best Line Medical Center, Inc. never responded to this request.
8. On or about December 9, 2010, Best Line Medical Center, Inc., as assignee of Ms. Moore, filed suit against Defendant alleging that Defendant failed to pay PIP benefits in a timely manner in accordance with the policy and applicable Florida law.
9. On February 9, 2011, Defendant served its Answer and Affirmative Defenses to Plaintiff’s Complaint which raised, as an affirmative defense, the following:
Plaintiff has failed to comply with Florida Statute §627.736(6)(b) in that it failed to respond to STATE FARM’S request for further information, which was sent out within 30 days of the dates of service being submitted to STATE FARM and at issue in this case. That letter is dated February 2, 2010.
10. On June 6, 2011, Plaintiff took the deposition of the claims adjuster, Richard Scott Grant. During that proceeding, Mr. Grant testified that State Farm received several telephone calls from Amanda Moore who informed them that no one in her car was injured as a result of the accident and that she had only gone to the medical clinic one time.
11. On or about August 25, 2011, this Court heard argument on Defendant’s Motion for Summary Judgment (filed with the Court on May 18, 2011).
II. Legal Analysis
12. Florida Statutes, §627.736(6)(b) provides, in pertinent part, as follows:
(6) DISCOVERY OF FACTS ABOUT AN INJURED PERSON; DISPUTES.
(b) Every physician, hospital, clinic, or other medical institution providing, before or after bodily injury upon which a claim for personal injury protection insurance benefits is based, any products, services, or accommodations in relation to that or any other injury, or in relation to a condition claimed to be connected with that or any other injury, shall, if requested to do so by the insurer against whom the claim has been made, furnish forthwith a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained and identifying which portion of the expenses for such treatment or services was incurred as a result of such bodily injury, and produce forthwith, and permit the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment; provided that this shall not limit the introduction of evidence at trial. Such sworn statement shall read as follows: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief.” No cause of action for violation of the physician-patient privilege or invasion of the right of privacy shall be permitted against any physician, hospital, clinic, or other medical institution complying with the provisions of this section. The person requesting such records and such sworn statement shall pay all reasonable costs connected therewith. If an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under paragraph (4)(a), the amount or the partial amount which is the subject of the insurer’s inquiry shall become overdue if the insurer does not pav in accordance with paragraph (4)(b) or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later. For purposes of this paragraph, the term “receipt” includes, but is not limited to, inspection and copying pursuant to this paragraph. Any insurer that requests documentation or information pertaining to reasonableness of charges or medical necessity under this paragraph without a reasonable basis for such requests as a general business practice is engaging in an unfair trade practice under the insurance code. (emphasis added)
13. Plaintiff argues that summary judgment is inappropriate at this time since it was precluded from asking the claims adjuster, in deposition, the following questions:
a. In what percentage of the cases that you are handling as an SIU investigator is a (6)(b) letter sent on behalf of State Farm?
b. Do you know in what percentage of claims filed by medical providers State Farm issued a (6)(b) request for additional information?
c. Would you agree with me that it is a regular business practice of State Farm upon receipt of medical bills to issue a (6)(b) letter to the provider?
14. The Defendant objected to these questions based upon it’s position that claim handling practices and procedures were irrelevant in a breach of contract case and thereby moved for a protective order from the Court prior to answering same. The Plaintiff never moved to compel such testimony.
15. Plaintiff also argues that the statements made by the adjuster in deposition regarding statements made by Amanda Moore were hearsay, and could not be relied upon by the Court.
16. The Court finds that with regard to Plaintiff’s point of questioning the Amanda Moore statements as being hearsay, it is familiar with the PIP statute’s requirements for a speedy payment by allowing for a carrier to do some initial investigation. By definition, that means that the insurer can look to any indicia of question or challenge to see whether or not there’s a reason for legitimately questioning whether or not the bill should be due and owing.
17. Once such a statement is made to anyone, it raises that question of whether the bills are compensable, regardless of whether or not it happens to be hearsay. Without any further denial by Ms. Moore as to whether or not she made that statement, it is irrelevant in the Court’s eyes as to the current posture of this case.
18. The Court finds that the statute is, in fact, clear and unambiguous and that upon request, the healthcare provider, in this case the plaintiff through assignment, owes a responsibility to at least make a good faith effort to respond in a timely fashion. The fact that the plaintiff made no response leaves the defendant insurer with no option other than to consider the matter tolled.
19. With regard to the question of business practice, it seems to this Court that, at the present posture of this case, that issue can, at best, be deemed collateral. The Court agrees with the Defendant that before the question of business practice is really ripe there must be a finding for the breach of contract.
20. Consequently, the Court also finds that with respect to this case, in its current posture, it will not sua sponte grant an abatement to allow the plaintiff to, now, at this late date, attempt to satisfy the requirements of 6(b) to avoid this summary judgment.
21. Based on the foregoing, it is hereby ORDERED AND ADJUDGED as follows:
22. Defendant’s Motion for Summary Judgment is hereby GRANTED. The court reserves jurisdiction to determine Defendant’s entitlement to recover its reasonable attorney’s fees and costs, and any other relief the court deems just and proper.
