21 Fla. L. Weekly Supp. 441b
Online Reference: FLWSUPP 2105BRADInsurance — Personal injury protection — Standing — Motion to dismiss for lack of standing is denied where insurer admitted that medical provider has standing and did not promptly raise lack of standing as affirmative defense
GOLD COAST PHYSICIANS CENTER, INC. a/a/o Charles Bradford, Plaintiff, vs. GARRISON PROPERTY CASUALTY AND INSURANCE COMPANY A/K/A USAA, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-009595 COSO 61. December 27, 2013. Arlene Simon Backman, Judge. Counsel: Matthew C. Barber, Landau & Associates, P.A., Hallandale Beach, for Plaintiff.
REVERSED. 25 Fla. L. Weekly Supp. 229c (Garrison Property and Casualty Ins. Co. v. Goldcoast Physicians Central, Inc., Case No. CACE14001887 (AP), 3/31/2017)
FINAL JUDGMENT FOR PLAINTIFFAND AGAINST DEFENDANT
THIS CAUSE came before the Court on November 4, 2013 on Plaintiff’s Motions for Summary Judgment, and the Court having reviewed the Motions, the entire Court file, and the relevant legal authorities, having heard argument, having made a thorough review of the matters filed of record, and having been sufficiently advised in the premises, the Court finds as follows:
This action was filed for PIP benefits and interest for dates of service October 18, 2010 thru December 7, 2010. The action included CPT code 99204 on date of service October 21, 2010, rendered by Dr. Joseph Dieuvil, as well as dates of service applied to the deductible. All dates of service and charges were demanded.
On November 4, 2013, this Court heard arguments on Plaintiff’s Amended Motion for Summary Judgment on Date of Service October 21, 2010 and CPT Code 99204 and Motion for Summary Judgment for Misallocated PIP Deductible, and Defendant’s Motion for Summary Judgment, or, in the Alternative, Motion to Dismiss the Bill for the October 21, 2010 Date of Service for CPT Code 99204, as Plaintiff’s Lacks Standing to Bring and Maintain Suit for the October 21, 2010 Bill.
The Court denied Defendant’s Motion for Summary Judgment or Motion to Dismiss. Having reviewed the entire court file, Plaintiff’s Response and Motion to Strike, the affidavit of Dr. Barry Raxenberg, the deposition transcript of Jacinta Noboa, the deposition transcript of Anita Mangru, the pleadings, and Defendant’s response to initial request for admissions, the Court finds that standing is not an issue in this suit. For instance, Defendant has already admitted Plaintiff’s standing to pursue this matter. Admissions are binding and conclusively prove the truth of the matter asserted. See, e.g., Rule 1.370(b); Holland v. CSX Transportation, et al., 583 So.2d 777 (Fla. 2d DCA 1991)(trial court may not disregard an admission at summary judgment hearing); and, Lutsch v. Smith, 397 So.2d 337 (Fla. 1st DCA 1981)(an admission between parties is a fact without need for supporting evidence). Defendant also did not promptly or properly raise standing as an affirmative defense. Defendant did not raise lack of standing as a defense in its first motion dismiss, renewed motion to dismiss, [first] answer and affirmative defenses to the complaint, [second] answer and affirmative defenses to the amended complaint or [third] amended answer and affirmative defenses to the amended complaint. Standing must be raised as an affirmative defense. See, e.g., Krivanek v. The Take Back Tampa Political Committee, 625 So.2d 840 (Fla. 1993)(failure to raise standing as an affirmative defense constitutes a waiver); Southern Group Indemnity v. Josey, 13 Fla. L. Weekly Supp. 334a (Fla. 17th Cir. Ct App. 2006)(assignment in PIP case should have been raised “as a defense and by not doing so, the issue was waived”); Schuster v. Blue Cross and Blue Shield, 843 So.2d 909, 911 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a](finding that in insurance benefits case, “[t]here is no question that lack of standing is an affirmative defense that must be raised by the defendant and that failure to raise it generally results in a waiver.”); Progressive Consumers Insurance Company v. Craig A. Newman, D.C. (a/a/o Reem Riley), 15 Fla. L. Weekly Supp. 129a (Fla. 13th Cir. Ct. App. 2007)(standing is not subject matter and standing was waived when insurer did not raise it in its answer); Professional Diagnostic Reading a/a/o Wilnel Telsaint v. State Farm Mutual Automobile Insurance Company, 20 Fla. L. Weekly Supp. 700a (Fla. 17th Cir. County Ct. 2013)(“[s]tanding is an affirmative defense and not an issue of subject matter jurisdiction.”); Rockledge HMA, LLC a/a/o Tandy Beck v. Progressive American Ins. Co., FLWSUPP 2011BECK (Fla. 18th Cir. County Ct. 2013) [20 Fla. L. Weekly Supp. 1101b] (standing must be raised as an affirmative defense); and, Calhoun, et al. v. New Hampshire Insurance Company, et al., 354 So.2d 882 (Fla. 1978)(trial court has subject matter jurisdiction of no-fault insurance law claim). The record even demonstrates that Plaintiff does have standing to pursue this matter, including CPT code 99204 for date of service October 21, 2010.
The Court granted Plaintiff’s Amended Motion for Summary Judgment on Date of Service October 21, 2010 and CPT Code 99204. The fee schedule amount for CPT code 99204 is $328.28. USAA previously allowed only $210.64 for the improperly downcoded charge. Therefore, the difference at 80% for the fee schedule amount is $94.11. The Court denied Plaintiff’s Motion for Summary Judgment for Misallocated PIP Deductible as moot because Plaintiff succeeds on summary judgment on CPT code 99204 for date of service October 21, 2010. Therefore, Plaintiff, either as an agent or assignee, will receive the full benefits owed after the deductible application regardless of the fact that USAA applied the PIP deductible out of order to the bills or incorrectly pursuant to Court Order dated April 24, 2013.
IT IS HEREBY ORDERED AND ADJUDGED that judgment is entered in favor of Plaintiff and against Defendant as follows: that Plaintiff, GOLD COAST PHYSICIANS CENTER, shall recover from Defendant, GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY a/k/a USAA, the sum of $94.11 representing PIP benefits and $16.65 in PIP interest that USAA did not pay, for a total of $110.76. Defendant shall also pay post-judgment interest at the applicable rate of interest (4.75% for 2013) until satisfied. Plaintiff’s counsel is entitled to reasonable attorney’s fees and costs pursuant to §627.428(1) incurred in obtaining this Final Judgment, and this Court specifically reserves jurisdiction to determine the amount of same and enter judgment for fees and costs. Accordingly, Final Judgment is hereby entered in favor of Plaintiff for which let execution issue.
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