20 Fla. L. Weekly Supp. 1217a
Online Reference: FLWSUPP 2012BEARInsurance — Personal injury protection — Coverage — Medical expenses — CPT coding — Insurer correctly downcoded CPT code which had been inappropriately upcoded by medical provider
PAUL J ZAC DBA COASTAL SPINE SPECIALISTS (A/A/O BEARSS, ROBIN), Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 522012 SC 001074 XXSCSC. August 12, 2013. Honorable Myra Scott McNary, Judge. Counsel: Kendrick Blackwell, St. Petersburg, for Plaintiff. Jarod L. Gilbert & Chris Cavaliere, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT
THIS CAUSE having come before this Court on Defendant’s “Motion for Final Summary Judgment” on August 6, 2013, and the Court having considered the motion and the applicable law, heard arguments of counsel, and having been otherwise fully advised, finds as follows:Background
This is an action for Personal Injury Protection (“PIP”) benefits in which Plaintiff filed a Complaint against United Services Automobile Association alleging that Defendant breached an automobile insurance contract providing such benefits. In response to Plaintiff’s Complaint, Defendant timely filed its Answer and Affirmative Defenses alleging, inter alia, that Defendant correctly downcoded the only CPT Code at issue in this case, 99204, to 99203. Defendant further alleged that it then reimbursed Plaintiff pursuant to the permissive fee schedule found in Fla. Stat. §627.736(5) and contained within the subject insurance policy. As such, no further amounts were due and owing.
On April 9, 2012, Defendant issued the following discovery to Plaintiff: 1) Defendant’s First Request for Admissions to Plaintiff, 2) Defendant’s Request to Produce, and 3) Defendant’s Interrogatories. After approximately one year, Plaintiff had not responded to said discovery, prompting Defendant to serve the following correspondence to Plaintiff:
1) A letter dated April 29, 2013 stating that Plaintiff’s responses to Defendant’s Interrogatories and Request for Production are almost a year overdue with a proposed “Motion to Compel Plaintiff’s Responses to Defendant’s Request for Production and Verified Responses to Defendant’s Interrogatories”. Said letter requested that responses be served within ten (10) business days.
2) A letter dated May 8, 2013 agreeing to give Plaintiff until May 17, 2013 to provide responses to Defendant’s Request for Production and Verified Answers to Defendant’s Interrogatories.
3) A letter dated June 14, 2013 stating that Plaintiff has not responded to Defendant’s Request for Admissions and that said responses are overdue with a proposed “Motion to Deem Defendant’s Request for Admissions to Plaintiff Admitted”. Said letter requested that responses be served within ten (10) business days.
4) A letter dated July 11, 2013 stating that Defendant intends to call up Defendant’s aforementioned discovery motions for hearing.
In addition, on May 9, 2013 Defendant filed and served its Motion for Summary Judgment based on Defendant’s position that Plaintiff was paid in full after Defendant properly downcoded the only CPT Code at issue. In support of said Motion for Summary Judgment, Defendant filed and served an Affidavit of Nicole Bonaparte (coding expert) on May 9, 2013.
As of the date of the hearing on Defendant’s Motion for Summary Judgment, Plaintiff had yet to respond to any of Defendant’s discovery, nor had Plaintiff filed anything in response to Defendant’s discovery motions, Defendant’s Motion for Summary Judgment, or the Affidavit of Nicole Bonaparte in support of Defendant’s Motion for Summary Judgment.Analysis
Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions on file and affidavits conclusively show that there remain no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510. The moving party has the burden of proving the nonexistence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966). Once the movant tenders competent evidence to support the motion, a party against whom the judgment is sought must present contrary evidence to reveal a genuine issue of material fact. Buitrago v. Rohr, 672 So.2d 646, 648 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1048a]. It is not enough for the party opposing summary judgment to merely assert that an issue exists. Id.
Fla. Stat. §627.736(5)(b)l.e. provides, in pertinent part, that an insurer is not required to pay a claim or charges:
For any treatment or service that is upcoded, or that is unbundled when such treatment or services should be bundled, in accordance with paragraph (d). To facilitate prompt payment of lawful services, an insurer may change codes that it determines to have been improperly or incorrectly upcoded or unbundled, and may make payment based on the changed codes, without affecting the right of the provider to dispute the change by the insurer, provided that before doing so, the insurer must contact the health care provider and discuss the reasons for the insurer’s change and the health care provider’s reason for the coding, or make a reasonable good faith effort to do so, as documented in the insurer’s file . . .
In this case, the pleadings on file and record evidence submitted demonstrate conclusively that no genuine issue of material fact exists. Plaintiff billed Defendant under CPT code 99204 for services allegedly rendered to Robin Bearss on March 3, 2010. Nicole Bonaparte, the coding expert utilized in this case by Defendant, submitted an affidavit stating the services rendered to Robin Bearss were improperly upcoded. Ms. Bonaparte’s affidavit further stated that Defendant properly downcoded CPT 99204 to 99203. Plaintiff never disputed this affidavit with evidence of its own.
In addition, Plaintiff admitted that Defendant properly downcoded the only CPT code at issue in this case by not filing responses to Defendant’s First Request for Admissions to Plaintiff. Fla. R. Civ. P. 1.370(a) provides that “[t]he matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer. . .within 30 days after service of the request. . .” Not only did Plaintiff not respond to Defendant’s First Request for Admissions after approximately one year, Plaintiff never filed a motion for relief, nor did Plaintiff respond to the multiple notices and motions that Defendant served on Plaintiff. As such, it is this Court’s opinion that it is entirely appropriate to consider said admissions in granting Defendant’s Motion for Summary Judgment. See e.g., Asset Management Consultants of Virginia, Inc. v. City of Tamarac, 913 So.2d 1179 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2415a] (finding no abuse of discretion in granting a motion for summary judgment when the opposing party took three months to file belated answers); In re Forfeiture of 1982 Ford Mustang, Romerio Walker v. City of Bartow Police Department, 725 So.2d 382 (Fla. 2nd DCA 1998) [23 Fla. L. Weekly D2653a] (holding that a motion for relief is required before relief from technical admissions can be considered); Singer v. Nationwide Mutual Fire Insurance Company, 512 So.2d 1125 (Fla. 4th DCA 1987) (finding no abuse of discretion in failing to grant plaintiff relief from conclusively established admissions where no motion for relief was made even though plaintiff filed an affidavit in opposition to defendant’s motion for summary judgment).Conclusion
Based on the evidence presented, including the admissions on file and the affidavit of Nicole Bonaparte, it is this Court’s finding that there are no genuine issues of material fact and Defendant is entitled to final summary judgment as a matter of law.
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is hereby GRANTED.
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