21 Fla. L. Weekly Supp. 442c
Online Reference: FLWSUPP 2105CASTInsurance — Personal injury protection — Coverage — Medical expenses — Affirmative defenses — No merit to insurer’s claim that it timely tendered full payment requested in demand letter to medical provider where letter accompanying payment added condition reserving right to recover payment if any court determined that 2008 fee schedule could be applied retroactively to policies issued in 2007
HEALTH DIAGNOSTICS OF MIAMI, LLC, d/b/a STAND-UP MRI OF MIAMI, a/a/o Luz Castrolondono, Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO 11-490 (72). February 10, 2014. Honorable Jill K. Levy, Judge. Counsel: Travis L. Stock, Weinstein Law Firm, Coral Springs, for Plaintiff. Gregory Blackburn, Office of the General Counsel, Miami Gardens, for Defendant.
ORDER ON CROSS-MOTIONSFOR FINAL SUMMARY JUDGMENTRE: PAYMENT TENDERED IN FULL
THIS CAUSE having come before the Court on January 27, 2014 on the parties’ Cross-Motions for Final Summary Judgment on the issue of payment tendered in full and the Court having heard argument of counsel, having reviewed the court file and relevant case law and being otherwise fully advised in the premises finds as follows:
Plaintiff Health Diagnostics of Miami, LLC, d/b/a Stand-Up MRI of Miami, a/a/o Luz Castrolondono (“STAND-UP MRI”) sued Defendant United Automobile Insurance Company (“UNITED”) for non-payment of personal injury protection benefits for services provided in the amount of $2,560.00 (80% of the billed amount) under Fla.Stat. §627.736. UNITED is defending based upon the claim that it timely tendered full payment as requested in the presuit demand. Attached to the payment was a letter titled “Explanation of Benefits-Disputed Payment.” The letter included the following paragraph:
Please be advised this is a doubtful and disputed claim. Be advised that the enclosed payment is being made on this dispute claim solely as a business decision and that you are only entitled to your lawful share. The enclosed payment is not an admission that the charges submitted were reasonable, related and/or necessary to the subject loss, nor can same be inferred from any action taken by United Auto Insurance Company. As such, United Auto Insurance Company reserves its right to recovery under Florida Statutes for any such overpayment. This reservation of right to recovery is extended to include any court’s finding that the 2008 fee schedules are applicable to insurance policies issued in 2007.
STAND-UP MRI rejected the payment, claiming that the payment was conditional. Payment was returned to UNITED. The lawsuit was filed on January 18, 2011.
The issue before this Court is whether the payment was made subject to a condition upon which UNITED had the right to insist, making it a valid tender. Plank v. Arban, So.2d 198 (Fla. 4th DCA 1970), Mcghee v. Mata, 330 So.2d 248 (Fla. 3d DCA 1976). Furthermore, Fla.Stat. §627.736(4)(b) allows a PIP insurer the right to challenge the reasonableness, relatedness and necessity of a PIP claim, even after the claim was paid. However, in the instant case, UNITED’s letter added an additional condition that “This reservation of right to recovery is extended to include any court’s finding that the 2008 fee schedules are applicable to insurance policies issued in 2007.” The Court finds this added language gave UNITED unbridled discretion to challenge the payment if any court found that the 2008 fee schedule could be applied retroactively to insurance policies issued in 2007, therefore making the tender conditional. The Court finds there is no genuine issue of material fact and the Plaintiff is entitled to a judgment in its favor as a matter of law. It is hereby,
ORDERED AND ADJUDGED that Plaintiff’s Cross Motion for Final Summary Judgment is granted and Defendant’s Motion for Final Summary Judgment is denied. STAND-UP MRI is entitled to final judgment in the amount of $2,560.00 plus prejudgment interest and costs.
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