20 Fla. L. Weekly Supp. 920a
Online Reference: FLWSUPP 2009CACCInsurance — Personal injury protection — Doctrine of de minimis non curat lex does not preclude action seeking $65 in unpaid PIP benefits
DIAGNOSTIC IMAGING CONSULTANTS OF ST. PETERSBURG, PA, (a/a/o PAMELA CACCIATORE), Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 12001510CO 041. June 10, 2013. Honorable Myra S. McNary, Judge. Counsel: Michael P. Bugbee, FL Legal Group, Tampa, for Plaintiff. Philip A. McCormick, Herssein & Herssein, P.A., Tampa, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT/MOTION TO DISMISS
THIS CAUSE having come before the Court on January 11, 2013, and Michael P. Bugbee, Esquire having appeared for Diagnostic Imaging Consultants of St. Petersburg, P.A. and Philip A. McCormick, Esquire having appeared for USAA Casualty Insurance Company on USAA’s Motion for Summary Judgment/Motion to Dismiss Pursuant to the Maxim De Minimis Non Curat Lex and the Court having reviewed the file, having heard argument of counsel and being otherwise fully advised in the premises, it is:
ORDERED and ADJUDGED:STIPULATED FINDINGS OF FACTAND PROCEDURAL HISTORY
Pamela Cacciatore was involved in a motor vehicle accident in October 2011. At the time of the October 2011 motor vehicle accident, Pamela Cacciatore had a policy of insurance in effect with USAA Casualty Insurance Company, which provided coverage to Pamela Cacciatore for Personal Injury Protection (PIP) benefits. On November 9, 2011 Plaintiff, a medical provider, performed one service for Pamela Cacciatore and timely billed the Defendant for date of service November 09, 2011 in the amount of $65.00. The bill was submitted on a CMS-1500 billing form and contained a charge for Current Procedural Code (CPT) code, 72050 modifier 26. The service performed on November 9, 2011 by the Plaintiff was only the professional component of the procedure. The Plaintiff billed only for reading the X-rays and providing a report, and did not actually perform the technical component of shooting the X-ray.
The instant action is brought pursuant to an assignment of benefits that Pamela Cacciatore executed in favor of Diagnostic Imaging Consultants of St. Petersburg, P.A. The Plaintiff and Defendant agreed that Plaintiff timely billed the Defendant for date of service, November 09, 2011 in the amount of $65.00, that Defendant received the bill, and that the Defendant paid zero dollars to the Plaintiff in response to the bill. Subsequent to the denial of the bill and prior to filing of the lawsuit, the Plaintiff sent a pre-suit demand letter pursuant to Fla. Stat. §627.736(10) and the Defendant did not make any payment in response to Plaintiff’s demand letter. The original lawsuit in this action was filed on February 10, 2012 and the current action is for breach of contract of a PIP insurance policy issued by Defendant pursuant to Fla. Stat. §627.736.
The Defendant has not conceded that Plaintiff’s charge is reasonable, that the service was medically necessary, and the causal relation between the service and the motor vehicle accident.
ISSUE, ARGUMENTS, ANALYSISAND CONCLUSIONS OF LAW
The legal issue before the Court is whether the Court should dismiss Plaintiff’s case pursuant to the doctrine of de minimis non curat lex. For the reasons outlined below the Defendant’s motion for summary judgment/motion to dismiss pursuant to the doctrine of de minimis non curat lex is denied.
The Defendant argued that even if Plaintiff could prove the necessary elements to prevail in this case on the merits, the Court should refuse to entertain Plaintiff’s action and should dismiss the action because the $65.00 bill is not worthy of the Court’s time and attention because it is a trifling amount.
The Defendant cited Milton v. Blackshear, 8 Fla. 161; 1858 Fla. LEXIS 17, and argued that since the Supreme Court of Florida refused to remand a case in 1858, which would have a present day value that is greater than $65.00, this case should be dismissed. The Defendant also cited some other opinions from county and circuit courts, but these cases are not binding and are distinguishable from the facts of the instant case. With regard to Milton v. Blackshear, it is procedurally distinguishable from the instant matter, because the Florida Supreme Court refused to remand that case which had already been to trial, because the purpose of the remand would have been to simply correct an excessive verdict. In contrast, the instant case is still in the discovery phase of litigation. The Blackshear case is further distinguishable because the litigants in that case were fighting about lumber, but the instant case involves a dispute over PIP insurance benefits, which is a creature of statute and part of the statutory and regulatory framework of the Florida Insurance Code.
The Plaintiff argued that pursuant to the provisions of the PIP statute, PIP benefits are primary and a medical provider that performs a service on a patient and receives information that it is related to an automobile accident must timely bill or the bill is not payable by the applicable PIP carrier or the insured/patient. The Plaintiff further argued that many legitimate services are performed on patients and the legislature has not put a minimum dollar amount in the statute as a threshold for filing a PIP lawsuit. The Plaintiff also pointed out that Fla. Stat. §627.736(11) prohibits PIP insurers from failing to pay valid claims, assuming no legitimate defenses and an otherwise valid and timely bill.
This Court finds that the rights and duties that are created on a PIP insured and a PIP insurance company are creatures of statute. The legislature if they chose could have put a de minimis amount in the PIP statute, but they did not put a de minimis amount in the statute. The very public policy behind the PIP statute and Fla. Stat. §627.428 is to even the playing field between a litigant who is an insured going up against an insurance company, where the litigant would probably be precluded from being able to pursue benefits that are allegedly due pursuant to the terms of an insurance contract, but for the fact that if they prevailed then they would have the right to attorney fees.
Within the specific context of PIP litigation, the amounts tend to be very small amounts or de minimis even, but the legislature has not put a minimum amount limit for which an insured or the insured’s assignee can sue, nor have they put a minimum amount within Fla. Stat. §627.428(1) that needs to be recovered in order to trigger attorney fees and costs. Fla. Stat. §627.428(1) (2011) states “Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.”
Defendant’s motion for summary judgment/motion to dismiss pursuant to the doctrine of de minimis non curat lex is DENIED as there cannot be a de minimis lawsuit in the PIP context as there is no statutory minimum.
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