19 Fla. L. Weekly Supp. 854c
Online Reference: FLWSUPP 1910WALKInsurance — Personal injury protection — Coverage — Lawfully rendered treatment — Inadequacy of medical provider’s record keeping is not lawful basis for nonpayment of PIP benefits — Affirmative defense stricken
MICHAEL J. DELESPARRA, D.C., P.A., (a/a/o Joseph Walkens), Plaintiff, vs. MGA INSURANCE COMPANY, INC., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-21374 COCE 53. June 18, 2012. Robert W. Lee, Judge. Counsel: Alex Williams, Law Office of Russel Lazega, P.A., Dania Beach, for Plaintiff. Scott Danner, Fort Lauderdale, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKEDEFENDANT’S AFFIRMATIVE DEFENSE #6
This cause came before the Court on June 18, 2012 for hearing of the Plaintiff’s Motion to Strike and/or for More Definite Statement as to Defendant’s Affirmative Defenses, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having ruled at the hearing on all portions of the Motion, except for defense #6, and having been sufficiently advised in the premises, the Court finds as follows:
As one of its affirmative defenses, the Defendant has alleged that the medical charges at issues in this PIP case are not compensable, because they were not lawfully rendered due to Plaintiff’s failure to maintain proper medical records. The Plaintiff urges the Court to strike this defense, claiming that failure to maintain medical records is not a proper defense in a PIP case.
In the absence of a specific provision in the PIP law permitting a restrictive term or limitation on coverage, a PIP policy cannot include conditions to coverage. See Custer Medical Center v. United Automobile Ins. Co., 62 So.3d 1086, 1089 n.1 (Fla. 2010) [35 Fla. L. Weekly S640a]. If the Legislature had intended a scenario to result in a PIP provider’s bill being not payable, “it could have said so.” See Florida Medical & Injury Center, Inc. v. Progressive Express Ins. Co., 29 So.3d 329, 338 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b]. Therefore, although medical providers are required to maintain a certain level of medical recordkeeping, it does not follow that failure to do so renders a provider’s treatment gratuitous. See id. at 341 (“Florida statutes are filled with duties and requirements unaccompanied by penalties or consequences for noncompliance. The courts are not at liberty to manufacture one.”).
This precise issue has been addressed by at least two trial courts, both of which agreed that failure to maintain adequate medical records is not a defense to payment in a PIP case. Dr. Kim Reddick, D.C., P.A. v. State Farm Mutual Automobile Ins. Co., 19 Fla. L. Weekly Supp. 487b (Volusia Cty. Ct. 2012); South Florida Pain & Rehabilitation, Inc. v. United Automobile Ins. Co., 16 Fla. L. Weekly Supp. 981b (Broward Cty. Ct. 2009). The Court has reviewed both of these decisions, and agrees with their well-reasoned conclusions. Accordingly, it is hereby.
ORDERED AND ADJUDGED that the Plaintiff’s Motion to Strike Affirmative Defense #6 is GRANTED.
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