21 Fla. L. Weekly Supp. 28b

Online Reference: FLWSUPP 2101DABUInsurance — Personal injury protection — Pre-suit discovery — Insured’s action against insurer — Trial court erred in entering summary judgment for insurer based on failure to provide pre-suit discovery pursuant to section 627.736(6)(b) — Statute does not impose any discovery obligation on insured and is addressed only to discovery required when medical providers sue for PIP benefits as assignees of insureds — Moreover, there is no support for conclusion that total forfeiture of PIP benefits is warranted for failure to comply with section 627.736(6)(b) — Documents required to be produced under statute are limited and do not include provider’s licenses

DIB DABUL, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 11-329 AP. L.T. Case No. 09-03184 CC 05. September 10, 2013. On appeal from the County Court for Miami-Dade County, Marvin H. Gillman, Senior Judge. Counsel: Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A., for Appellant. Douglas H. Stein, Seipp & Flick, LLP, for Appellee.

(Before SIGLER, MANNO SCHURR, and THORNTON, Jr., JJ.)

(MANNO SCHURR, Judge.) On March 10, 2009, Dib Dabul, State Farm’s insured, sued State Farm for Personal Injury Protection (PIP) benefits.

After withdrawing its motion to dismiss for lack of subject matter jurisdiction, State Farm filed its Answer and alleged eighteen affirmative defenses. Only the third and fourth affirmative defenses are relevant to the issue on appeal.¹ On May 10, 2010, State Farm moved for Final Summary Judgment, based on an alleged failure of the plaintiff’s medical providers to respond to a purported pre-suit discovery request pursuant to Florida Statute 627.736(6)(b).

In response to State Farm’s Motion for Summary Judgment, Mr. Dabul filed the affidavit of Annia Leon, the records custodian of Ann K. Medical Office, Inc., one of his medical providers.

Ms. Leon attested that on July 31, 2008, she mailed to State Farm a complete copy of the medical records and medical bills for treatment rendered to Mr. Dabul, which consisted of an Initial Examination, Physical Therapy Notes, Chiropractic Treatment Notes and HCFA 1500 forms for the dates of service from June 30, 2008, through July 31, 2008.

In her affidavit, Ms. Leon testified that on July 31, 2008, she mailed all of the documents State Farm requested in its letter dated August 22, 2008, which sought the entire medical file, including but not limited to any and all handwritten notes, SOAP notes, billing records, statements, super bills, reports, correspondence, charts, tests, findings, evaluation reports, prescription referral forms, laboratory and radiology reports, patient questionnaires, assignment of benefits, releases, proof of prior mailings, authorizations and all other medical records and documents pertaining to Mr. Dabul. Ms. Leon attested that State Farm never requested that Ann K. Medical Center complete an Attending Physician’s Report.

State Farm relied on the affidavit of its adjuster which stated that despite receipt of the records sent by Ann K Medical, State Farm was still “unable to determine whether the medical services allegedly provided to Dib Dabul, pursuant to the CMS/HCFA 1500 claim forms, were reasonable, necessary and related, to the subject automobile accident.”

During the September 1, 2010 hearing on its Motion for Summary Judgment, State Farm conceded that the only documents that Ann K. Medical allegedly failed to provide were the licenses it requested. Thus, State Farm’s defense was based on the alleged absence of the requested licenses.

Relying on Coulson v. Fortune Ins. Co., 5 Fla L. Weekly Supp. 45a (Fla. 11th Cir. Ct. September 26, 1997), the trial court found that the language of §627.736(6)(b), places no duty on an insured to furnish medical records when filing a claim for PIP benefits.

Accordingly, the trial court initially denied State Farm’s Motion for Summary Judgment, finding that §627.736(6)(b) does not impose an obligation on an insured who files suit for PIP benefits to comply with the pre-suit discovery authorized by (6)(b), and that (6)(b) is addressed to medical providers — not insureds. (HT at 11-12).

In denying State Farm’s Motion for Summary Judgment, the trial court indicated a motion for reconsideration would be considered if State Farm presented case law contrary to Coulson v. Fortune Insurance Co., supra. State Farm timely filed its Motion for Rehearing/Reconsideration. Thereafter, the original trial judge was re-assigned to another division. A successor judge heard State Farm’s Motion for Rehearing/Reconsideration on January 4, 2011, during which time State Farm argued that the Plaintiff’s medical provider did not respond to the (6)(b) request and that the attending physicians report was not provided. Although this argument was contrary to the position taken by State Farm at the original summary judgment hearing, (i.e. that the (6)(b) defense was based solely on the alleged failure to produce copies of the licenses), State Farm’s motion was granted. Thereafter, Mr. Dabul filed his Motion for Reconsideration, followed by yet a fourth judge who entered a Final Summary Judgment in favor of State Farm. This appeal followed.

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormand Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a] (citation omitted). This Court reviews a summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party.

The trial court erred by entering summary judgment in favor of State Farm and for the reasons that follow, we reverse. Florida Statute §627.736(6)(b) does not impose any obligation upon an insured to provide the limited pre-suit discovery in the statute because the statute is addressed to medical providers who sue for PIP benefits as assignees of the insured. Coulson v. Fortune Insurance Company, supra.

In addition, the pre-suit discovery referenced in §627.736(6)(b) is specifically limited to certain documentation. The (6)(b) request for documents sent by State Farm in this case far exceeded the limited pre-suit discovery that State Farm would be entitled to, if it were entitled to any such discovery at all under the circumstances of this case. State Farm effectively rewrote the statute by requiring a medical provider to provide documents that were neither enumerated nor contemplated by section 627.736(6)(b) of the Florida Statutes.

The statutory provision at issue in this appeal, §627.736(6)(b) provides in pertinent part:

(b) Every physician, hospital, clinic or other medical institution providing, before or after bodily injury upon which 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 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 rendered 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 shown 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 pay in accordance with (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 reasonable basis for such requests as a general business practice is engaging in an unfair trade practice under the insurance code.

§ 627.736(6)(b), Fla. Stat. (2007).

State Farm contends that a medical provider’s failure to comply with §627.736(6)(b), serves to bar the injured insured’s claim. Pre-suit discovery is not a condition precedent and nothing in the statute supports the position that failure to provide a copy of a license is a condition precedent, as State Farm contends. There is no basis to support the trial court’s conclusion that a total forfeiture of PIP benefits is warranted if a medical provider does not comply with (6)(b). It is undisputed that State Farm’s Motion for Summary Judgment was premised on the medical provider’s failure to provide copies of licenses, which are not contemplated by a (6)(b) request. There is absolutely no mention of an obligation on the part of a medical provider to produce licenses. On this basis alone, there can be no entry of summary judgment in favor of State Farm.

The Third District Court of Appeal has held in favor of insurers with respect to whether §627.736(6)(d) requires an insurer to provide a PIP log to an insured, if requested by the insured. See Southern Group Indem. v. Humanitary Health Care, Inc., 975 So. 2d 1247 (Fla. 3d DCA 2008) [32 Fla. L. Weekly D1396a]. The Third District held that the provision is not broad enough to require the insurer to provide the PIP payout log to the insured.

The Fifth District has also interpreted §627.736 narrowly. In Progressive American Insurance Company v. Rural/Metro Corp of Fla., 994 So. 2d 1202 (Fla. 5th DCA, 2008) [33 Fla. L. Weekly D2649a], the Fifth District concluded that neither an insured nor his or her medical provider is entitled to discover an insurer’s PIP log. Florida Statute §627.736(6)(b) enumerates the very limited and specific documents that an insurer may request from a medical provider.

Finally, we note that the statute provides the insurer a mechanism to seek relief from the trial court, pre-suit, if it requires additional information.

(c) In the event of any dispute regarding insurer’s right to discovery under this section, the insurer may petition a court of competent jurisdiction to enter an order permitting such discovery. The order may be made only on motion for good cause shown and upon notice to all persons having an interest, and it shall specify the time, place, manner, conditions, and scope of the discovery. Such court may, in order to protect against annoyance, embarrassment, or oppression, as justice requires, enter an order refusing discovery or specifying conditions of the discovery and may order payments of costs and expenses of the proceeding, including reasonable fees for the appearance of attorneys at the proceedings, as justice requires.

§ 627.736(6)(c), Fla. Stat. (2007) (emphasis added).

This provision provides a means for the insurer to seek relief from the trial court for additional discovery beyond that which (6)(b) requires. However, the record does not demonstrate that State Farm ever petitioned the trial court for such additional discovery and never requested an order from the court compelling either Mr. Dabul or his medical provider to provide additional information. See Nunez v. GEICO General Ins. Co., 117 So. 3d 388, 394 n.3 (Fla. 2013) [38 Fla. L. Weekly S440a].

For the reasons set forth above, the summary judgment entered in favor of State Farm Insurance Company is hereby reversed and this cause is remanded to the trial court for further proceedings consistent with this opinion. We also provisionally grant Dabul’s motion for appellate attorney’s fees and remand that motion to the trial court to determine the amount, conditioned on Dabul prevailing pursuant to applicable statutes, rules and case law. Accordingly, we deny State Farm’s motion for attorney’s fees pursuant to its proposal for settlement. (SIGLER AND THORNTON, JJ, CONCUR.)

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¹State Farm’s third affirmative defense alleges:

3. Failure to Comply with Conditions Precedent- Failure to Respond to Defendant’s FSA §627.736(6)(b) Request for Documents: Defendant alleges that medical bills at issue are not recoverable in this action as the medical provider failed to comply with the statutory and contractual conditions precedent to bring this cause of action. More specifically, the Defendant timely requested additional information and documentation from the medical provider, pursuant to Florida Statue §627.736(6)(b). The Defendant’s (6)(b) Request tolls the time for the medical bills that are subject to the request for additional information or documentation, to become overdue until ten (10) days after the insured/medical provider provides the requested information and/or documentation. However, notwithstanding the Plaintiff and or the medical provider’s failure to respond to the Defendant’s (6)(b) Request for additional information/documentation, Plaintiff filed the instant action demanding payment for the medical bills that are subject to the Defendant’s (6)(b) Request for additional information or documentation. Therefore, due to the medical provider’s and/or the Plaintiff’s failure to comply with the conditions precedent to file this action, it cannot recover for the unpaid medical benefits against either the Defendant and/or the Plaintiff.

State Farm’s fourth affirmative defense alleges:

4. Provider’s Failure to Submit Additional Documentation: Defendant alleges that the medical bills at issue are not overdue as the Defendant timely requested additional information and documentation from the Plaintiff, pursuant to Florida Statute §627.736(6)(b), and to date the provider has failed to provide the Defendant with the requested additional medical records, including but not limited to a written report of the history, condition, treatment, dates, costs of the treatment of the claimant, lost wage information, and/or workers compensation documentation to properly evaluate Plaintiff’s claim. Therefore, the medical bills which are subject to (6)(b) Request are not recoverable in this action.

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