22 Fla. L. Weekly Supp. 961a
Online Reference: FLWSUPP 2208KIMInsurance — Personal injury protection — Coverage — Emergency medical condition — Declaratory action — Under amendments to PIP statute requiring PIP insurer to pay benefits up to $10,000 if qualified medical provider has determined that claimant had emergency medical condition and limiting reimbursement to $2,500 if qualified provider has determined that claimant did not have emergency medical condition, benefits are limited to $2,500 in absence of determination by qualified provider that emergency medical condition exists — Proposal for settlement and motion for attorney’s fees are stricken where provider does not seek monetary damages and will not recover any wrongfully withheld benefits
A-1 IMAGING CENTERS, LLC (a/a/o MARISSA KIM), Plaintiff(s), vs. USAA GENERAL INDEMNITY COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-006072 COCE 56. March 5, 2015. Linda R. Pratt, Judge.
ORDER ON PENDING MOTIONS
Plaintiff has filed an amended complaint in this cause claiming it is in doubt as to its rights as an assignee under a PIP policy of insurance. Plaintiff seeks a declaration that the policy affords $10,000 in PIP coverage either because no qualified provided as set forth in F.S. 627.736(1)(a)1 and 2 has determined that the patient “did not have an emergency medical condition;” or alternatively, that there is $10,000 in coverage because the patient did have an emergency medical condition.
Pending before the Court are the following motions:
1.) Plaintiff’s motion to strike defendant’s proposal for settlement made pursuant to F.S. 768.79 and Rule 1.442 Fla. R. Civ. Pro.
2.) Defendant’s motion to strike plaintiff’s claim for attorney’s fees pursuant to F.S. 627.428
3.) Defendant’s motion to dismiss or for summary judgment
4.) Defendant’s motion to strike as untimely the affidavit of Natalia Kagan, D.C., ARNP, filed in opposition to the motion for summary judgment
The Court has reviewed the record, including the pleadings, the motions and memoranda and admissible evidence of record, and has considered the arguments and case authorities cited by counsel. Based on the foregoing, it is ordered as follows:
1.) Plaintiff’s motion to strike defendant’s proposal for settlement is granted. F.S. 768.79 applies to “any civil action for damages.” The Court finds that plaintiff does not seek any money damages, therefore F.S. 768.79 is not applicable to its claim. National Indemnity Co. v. Consolidated Insurance Services, 778 So. 2d 404 (Fla. 4 DCA 2001) [26 Fla. L. Weekly D291a].
2.) Defendant’s motion to strike plaintiff’s claim for attorney’s fees is granted. The Court finds that F.S. 627.428(1) does not apply where plaintiff will not recover any insurance proceeds which were wrongfully withheld. Progressive American Insurance Company v. Rural/Metro Corporation of Florida, 994 So. 2d 1202 (5 DCA 2008) [33 Fla. L. Weekly D2649a].
3.) Defendant’s motion to strike the affidavit of Dr. Kagan is granted. The Court finds it is untimely, pursuant to Rule 1.510 Fla. R. Civ. Pro. and Rule 2.516 Fla. R. Jud. Adm.
4.) As to the motion for summary judgment, the Court finds that there is no admissible evidence that the patient had an emergency medical condition. Further, the evidence is unrebutted that prior to this suit defendant was not furnished with a determination that the patient had an emergency medical condition. This Court has previously ruled that benefits are limited to $2,500 absent a determination by an authorized provider that an emergency medical condition exists. Southside Chiropractic Centre, Inc. v. USAA General Indemnity Company, case number 13-020731 (56) (Fla. Broward Co. Ct. June 10, 2014) [22 Fla. L. Weekly Supp. 152a]. See also: Enivert v. Progressive Select Insurance Company, case number 14-CV-80279 (S.D. Fla. July 23, 2014) [25 Fla. L. Weekly Fed. D123a] (order granting defendant’s motion to dismiss); Robbins v. Garrison Property & Casualty Insurance Company, case number 13-81259 (S.D. Fla. July 18, 2014) [25 Fla. L. Weekly Fed. D125a] (Order granting defendant’s motion to dismiss); Medical Center of the Palm Beaches v. USAA Casualty Insurance Company, case number 50 2013 SC 012523 (Fla. Palm Beach Co. Ct., August 20, 2014) [22 Fla. L. Weekly Supp. 279a].
Therefore the Court finds that summary judgment must be granted in favor of defendant finding that benefits are limited to $2,500 in the absence of a determination by a qualified provided that an emergency medical condition exists, and further finding that plaintiff is not entitled to a determination that coverage is up to $10,000 because it has presented no admissible evidence that the patient had an emergency medical condition.
Defendant shall submit a final judgment consistent with this order.
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