21 Fla. L. Weekly Supp. 929a
Online Reference: FLWSUPP 2109DICKInsurance — Personal injury protection — Declaratory action — Motion to dismiss petition seeking declaration as to whether section 627.736(1) provides for $10,000 in PIP coverage or $2,500 in PIP coverage when medical record is silent as to whether injured person did or did not have emergency medical condition is denied — Failure to attach policy does not warrant dismissal where dispute stems from statutory provisions described in petition — No merit to claim that petition does not state cause of action for declaratory relief where allegations of petition evince present and actual dispute over scope of coverage — Declaratory action is not barred by statutory requirement that all claims to recover PIP benefits related to same medical provider for same injured person be brought in one action
BAYFRONT MEDICAL CENTER, INC., a Florida Corporation (assignee of Dickey, Brian), Plaintiff, v. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County. Case No. 13-008022-CO. May 6, 2014. Myra Scott McNary, Judge. Counsel: Russel Lazega, Florida Advocates, Dania Beach, for Plaintiff. Scott Dutton, Dutton Law Group, P.A., Tampa, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S PETITION FOR DECLARATORY RELIEF AND DENYING DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S CLAIM FOR ATTORNEY FEES AND GRANTING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER AND TO STAY DISCOVERY
THIS CAUSE having come before this Court for hearing on April 2, 2014 on the Defendant’s Motion To Dismiss Plaintiff’s Petition For Declaratory Relief and Motion To Strike Plaintiff’s Claim For Attorney Fees and the Plaintiff’s Motion For Protective Order And To Stay Discovery and the Court, having reviewed the motions, case file, applicable case law and having heard argument of counsel, the Court hereby finds as follows:
FACTUAL BACKGROUND
This is a declaratory action brought by a Plaintiff medical provider as the assignee of a patient to whom medical treatment was rendered by the Plaintiff in order to treat injuries the patient incurred as a result of a motor vehicle accident. Plaintiff’s declaratory action is brought based upon the parties’ disputed interpretation of F.S. s. 627.736(1)(a), which was amended, effective January 1, 2013, to state as follows:
(1) REQUIRED BENEFITS. — An insurance policy complying with the security requirements of s. 627.733 must provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in the motor vehicle, and other persons struck by the motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to subsection (2) and paragraph (4)(e), to a limit of $10,000 in medical and disability benefits and $5,000 in death benefits resulting from bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:
(a) MEDICAL BENEFITS — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services. . .if the individual receives initial services and care pursuant to subparagraph 1. within 14 days after the motor vehicle accident. The medical benefits provide reimbursement only for:
1. Initial services and care that are lawfully provided, supervised, ordered, or prescribed by a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, or a chiropractic physician licensed under chapter 460 or that are provided in a hospital or in a facility that owns, or is wholly owned by, a hospital. Initial services and care may also be provided by a person or entity licensed under part III or chapter 401 which provides emergency transportation and treatment.
2. Upon referral by a provider described in subparagraph 1., follow-up services and care consistent with the underlying medical diagnosis and rendered pursuant to subparagraph 1. which may be provided, supervised, ordered, or prescribed only by a physician licensed under chapter 458 or chapter 459, a chiropractic physician licensed under chapter 460, a dentist licensed under chapter 466, or, to the extent permitted by applicable law and under the supervision of such physician, osteopathic physician, chiropractic physician, or dentist, by a physician assistant licensed under chapter 458 or chapter 459 or an advanced registered nurse practitioner licensed under chapter 464. . . .
3. Reimbursement for services and care provided in subparagraph 1. or subparagraph 2. up to $10,000 if a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, a physician assistant licensed under chapter 458 or 459, or an advanced registered nurse practitioner licensed under chapter 464 has determined that the injured person had an emergency medical condition.
4. Reimbursement for services and care provided in subparagraph 1. or subparagraph 2. is limited to $2,500 if any provider listed in subparagraph 1. or subparagraph 2. determines that the injured person did not have an emergency medical condition.
Ch. 2012-197, Laws of Florida; §627.736(1)(a)1-4, Fla. Stat. (2013).
Defendant maintains that under Section 1(a)(3) a specific determination that a patient has an “emergency medical condition” is necessary for the insured patient to be entitled to $10,000 in PIP benefits and that, absent any such determination, the insured patient’s PIP benefits are automatically limited to $2,500 under Section 627.736(1)(a)(4).
Plaintiff disagrees and maintains that Section 1(a)(4) only authorizes a PIP insurance company to limit PIP coverage to $2,500 if the insured patient’s own provider listed in Section 627.736(1)(a)1 and 2, who actually rendered the initial treatment or follow-up treatment and care to the insured patient, affirmatively determines that the injured patient did not have an “emergency medical condition,” and absent such an affirmative determination by the insured patient’s own provider, the insured patient’s PIP coverage remains at the $10,000 level of coverage mandated by Section 627.736(1).
Plaintiff’s declaratory action seeks to resolve a legal dispute between the parties as to the scope of coverage and, specifically, a declaration as to whether F.S. s. 627.736(1) provides for $10,000 in PIP coverage or $2,500 in PIP coverage where the medical record is silent as to whether there is or is not an emergency medical condition.CONCLUSIONS OF LAWDefendant’s Motion To Dismiss Plaintiff’sPetition For Declaratory Relief and Motion To StrikePlaintiff’s Claim For Attorney Fees
The Court respectfully denies the motion to dismiss and addresses the issues raised by the Defendant as follows:
1. Failure to Attach Policy — The Court denies the motion based upon the allegations of the Complaint. The disputed provisions in this case stem from a statutory provision, which has been fully described in the pleading.
2. No Cause of Action Stated for Declaratory Relief — The Court finds that the allegations of the Complaint (which must be taken as true for purposes of a Motion to Dismiss) are appropriate for an action for declaratory relief based upon the parties present and actual dispute over the scope of coverage under F.S. s. 627.736(1)(a).
3. Striking of Claim for Attorney’s Fees — The Court denies the Defendant’s Motion to Strike Claim for Attorney’s Fees.
4. F.S. s. 627.736(15) precludes this action — The Court rejects this argument as this is an equitable action, not an action for damages and, therefore, not subject to F.S. s. 627.736(15).
Plaintiff’s Motion For ProtectiveOrder And To Stay Discovery
The Court grants Plaintiff’s motion for protective order for now. Should the need arise the parties can petition the Court once the threshold legal question regarding the scope of coverage is determined.
ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss and Motion to Strike Plaintiff’s Claim for Attorney Fees are denied and Plaintiff’s motion for protective order is granted.
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