22 Fla. L. Weekly Supp. 838a

Online Reference: FLWSUPP 2207SIMMInsurance — Personal injury protection — Attorney’s fees — Confession of judgment — Payment of benefits in excess of $2,500 emergency medical condition limitation upon receipt of determination of emergency medical condition after suit was filed constitutes confession of judgment entitling medical provider to award of attorney’s fees and costs — If insurer was in doubt as to existence of emergency medical condition upon receipt of notice of loss that did not contain emergency medical condition determination, it was incumbent upon insurer to make request for additional information under section 627.736(6)(b) — Where insurer that did not receive emergency medical condition determination with notice of loss failed to timely pay benefits in excess of $2,500 limit without making request for additional information, and instead obtained unauthorized peer review determining that insured did not have emergency medical condition, provider was authorized to file suit for balance of bill after submitting pre-suit demand letter — No merit to insurer’s arguments that 30-day payment deadline did not begin to run for expenses over $2,500 until provider submitted emergency medical condition determination during course of litigation or that suit was premature

AFO IMAGING, INC., a.a.o Santonio Simmons, Plaintiff, vs. ENTERPRISE LEASING COMPANY OF FLORIDA, LLC, Defendant.County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 13-CC-029576, Division U. January 16, 2015. Honorable Frances M. Perrone, Judge. Counsel: David M. Caldevilla, de la Parte & Gilbert, P.A., Tampa; and Christopher P. Calkin, Law Offices of Christopher P. Calkin, P.A., Tampa, for Plaintiff. Christopher E. Marshall, McFarlane & Dolan, Coral Springs, for Defendant.

REVERSED. FLWSUPP 2407SIMM (Enterprise Leasing Co. v. AFO Imaging, Inc., 15-CA-5186, 10/24/2016)

ORDER CONCERNING PLAINTIFF’SENTITLEMENT TO RECOVER REASONABLEATTORNEYS’ FEES AND COSTS

THIS CAUSE came before the Court on November 20, 2014 concerning the “Motion to Deny Plaintiff’s Entitlement to Any Attorneys’ Fees for Post-Suit Payment Made Pursuant to the Post-Suit Declaration of Emergency Medical Condition” filed on October 1, 2014 by Defendant Enterprise Leasing Company of Florida, LLC, against the Plaintiff, AFO Imaging, Inc., as assignee of Santanio Simmons. The Court, having considered the motion, the record, and the arguments of counsel, and being otherwise advised in the premises,

ORDERS AND ADJUDGES as follows:

A. Introduction

1. This is an action seeking personal injury protection (“PIP”) insurance benefits.

2. The pertinent facts are undisputed, but the parties disagree concerning the proper interpretation and effect of the “emergency medical condition” provisions of Section 627.736(1)(a)3 and 4, Florida Statutes (2013).

3. For the reasons set forth below, the Court hereby denies the Defendant’s “Motion to Deny Plaintiff’s Entitlement to Any Attorneys’ Fees for Post-Suit Payment Made Pursuant to the Post-Suit Declaration of Emergency Medical Condition,” and hereby determines that the Plaintiff is entitled to an award of reasonable attorneys’ fees and costs.

B. Undisputed facts

4. On or about May 6, 2013, Santonio Simmons (the “Insured Patient”) was involved in a motor vehicle accident, and as a result, sustained bodily injuries. At the time of the accident, the Defendant was obligated to provide PIP insurance coverage to the Insured Patient.

5. As a result of those injuries, on July 10, 2013, the Insured Patient sought magnetic resonance imaging (“MRI”) services from the Plaintiff, who had obtained a written assignment of benefits from the Insured Patient. That same day, the Plaintiff timely submitted to the Defendant written notice of the fact of a covered loss (i.e., a CMS 1500 claim form) reflecting charges of $1,296.99, in accordance with Section 627.736(4)(b) and (5)(d), Florida Statutes (2013).

6. Thereafter, having not received a determination as to whether or not the Insured Patient had suffered an emergency medical condition, the Defendant retained David A. Libert, M.D. to provide an opinion. On or about July 23, 2013, Dr. Libert provided the Defendant with a “peer review” statement, which among other things stated, “Based on the medical records reviewed for the date of injury, it is my opinion that the claimant does not have an emergency medical condition . . . .” However, Dr. Libert had not provided initial services and care to the Insured Patient, or follow up services and care to the Insured Patient, as described in Section 627.736(1)(a)1 or 2, Florida Statutes (2013). Instead, Dr. Libert’s peer review statement was merely based upon his review of medical records.

7. While the Plaintiff’s written notice of the fact of a covered loss was pending, the Defendant did not make a request pursuant to Section 627.736(6)(b), Florida Statutes (2013), which allows insurers to request “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 a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained.” Section 627.736(6)(b) explains that an insurer making such a request “shall pay all reasonable costs connected therewith.” Moreover, when properly and timely invoked, Section 627.736(6)(b) extends the time for payment of a PIP claim. Absent a proper and timely subsection (6)(b) request, the 30-day time period for payment under subsection (4)(b) continued to run unabated.

8. Rather than making a subsection (6)(b) request, the Defendant relied upon the “peer review” of Dr. Libert who did not provide any service to the Insured Patient. Dr. Libert suggested the Insured Patient did not have an emergency medical condition. The insurer concluded the Insured Patient’s PIP coverage was limited to $2,500, and declined to fully pay the Plaintiff’s bill within the 30-day time period required by subsection (4)(b). Instead, on or about August 26, 2013, Defendant made a partial payment of $768.60 to the Plaintiff, and informed the Plaintiff that the Insured Patient’s medical expenses were exhausted at the $2,500 mark.

9. The Plaintiff’s counsel subsequently sent the Defendant a pre-suit demand letter pursuant to Section 627.736(10), Florida Statutes (2013). When the Defendant failed to pay the claim in response to the pre-suit demand letter, the Plaintiff filed the instant lawsuit on November 4, 2013.

10. On or about August 20, 2014 (i.e., approximately 9 months after this lawsuit was filed), the Plaintiff obtained an affidavit signed by Sean M. Mahan, M.D. In the affidavit, Dr. Mahan determined that the Insured Patient did indeed have an emergency medical condition. Dr. Mahan’s emergency medical condition determination was subsequently provided to the Defendant’s counsel, on August 27, 2014. See, “Plaintiff’s Notice of Serving Affidavit of Sean M. Mahan, M.D.” (Aug. 27, 2014). Like Dr. Libert before him, Dr. Mahan had not provided any initial or follow-up services and care to the Insured Patient, and his emergency medical condition determination was based on a review of the Insured Patient’s medical records.

11. Thereafter, by letter dated September 16, 2014, the Defendant’s counsel tendered an additional “non-conditional payment” of $272.87 to the Plaintiff and acknowledged that Dr. Mahan’s determination made the Plaintiff’s claim compensable beyond the $2,500 amount. However, that letter contended that since the payment was issued within 30 days of Defendant’s receipt of Dr. Mahan’s emergency medical condition determination, “no interest, penalty, or attorneys’ fees are due with this payment.”

12. On October 1, 2014, the Defendant filed its “Motion to Deny Plaintiff’s Entitlement to Any Attorneys’ Fees for Post-Suit Payment Made Pursuant to the Post-Suit Declaration of Emergency Medical Condition.”

13. On October 15, 2014, the Plaintiff filed its “Motion to Tax Attorney’s Fees and Costs.” That motion contends that by virtue of the “non-conditional payment” of $272.87, “Defendant has confessed judgment by paying a portion of the underlying contractual and statutorily required amounts disputed during the pendency of the suit and Plaintiff is entitled to attorney’s fees and costs,” and that “a portion of the statutorily required penalty, postage and interest amounts remain outstanding.”

14. The issues of whether the Defendant’s payment constitutes a confession of judgment and whether the Plaintiff is entitled to an award of reasonable attorneys’ fees and costs, require an analysis of the new “emergency medical condition” provisions of the PIP statute.

C. Legal analysis

15. Since 1979, subsection (1) of the PIP statute has always required Florida drivers to carry $10,000 of PIP insurance coverage. See, §627.736(1), Fla. Stat. (1979-2014). However, effective as of January 1, 2013, the Legislature modified that $10,000 requirement for the first time, by inserting new subsections (1)(a)3 and 4 with new “emergency medical condition” provisions. See, Ch. 2012-197, Fla. Stat.

16. Effective as of January 1, 2013, the Legislature amended Section 627.736, Florida Statutes, to read 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 (emph. added); §627.736(1)(a)1-4, Fla. Stat. (2013) (emph. added). A definition of “emergency medical condition” has been also added to Section 627.732(16), Florida Statutes, but the terms of that definition are not at issue in this case.

17. Thus, subsection (1) of the 2013 version of the PIP statute still maintains the same requirement of $10,000 in PIP benefits. However, the language utilized by the legislature in subparagraphs (1)(a)3 and 4 place the actual amount of medical expenses coverage in “limbo” unless and until an emergency medical condition determination is made. Subsection (1)(a)3 allows for a licensed physician, dentist, physician assistant or advanced registered nurse practitioner to make a determination the injured person had an emergency medical condition. Subsection (1)(a)4 uses specific, alternate language and indicates a provider listed in subparagraph 1 or subparagraph 2 may determine the injured person did not have an emergency medical condition. If and when an authorized health care provider makes a determination the insured “did not have an emergency medical condition,” PIP coverage for medical services is limited to $2,500. If and when a licensed physician, dentist, physician assistant, or advanced registered nurse practitioner, not necessarily a provider, makes a determination the insured “had an emergency medical condition,” PIP coverage for medical services is limited to $10,000.¹ Notably, the PIP statute does not identify any deadline within which an emergency medical condition determination must be made, and does not identify any procedures establishing when and how an emergency medical condition determination must be submitted or communicated to the insurer.²

18. The Defendant argues the PIP statute should be interpreted as imposing an “automatic” $2,500 cap on PIP medical expenses coverage unless and until the insured or the insured’s assignee health care provider actually submits an emergency medical condition determination to the insurer. However, this Court does not find such a default level of benefits identified within the PIP statute and this Court is unable to rewrite the statute to create one. See, e.g., Capeletti Bros., Inc. v. Dep’t of Transp., 499 So.2d 855, 857 (Fla. 1st DCA 1986); Lamont v. State, 597 So.2d 823, 831 (Fla. 3d DCA 1992); Jordan v. State, 801 So.2d 1032, 1034 (Fla. 5th DCA 2001) [27 Fla. L. Weekly D15a]. Attempting to rewrite the PIP statute under the guise of statutory construction would violate the constitutional separation of powers doctrine, which prohibits the judiciary from altering the wording of statutes where the Legislature clearly has not done so. See, e.g., Florida Dept. of Revenue v. Florida Mun. Power Agency, 789 So.2d 320, 324 (Fla. 2001) [26 Fla. L. Weekly S422a]. Instead of rewriting the statute under the guise of statutory construction, the Courts must attempt to give meaning and effect to all words in the statute and not render them meaningless. Fla. Police Benev. Ass’n, Inc. v. Dep’t of Agric. & Consumer Servs., 574 So.2d 120, 122 (Fla.1991). Accordingly, before PIP medical expenses coverage can be established at $10,000, subsection (1)(a)3 expressly requires a licensed physician, dentist, physician assistant, or advanced registered nurse practitioner, not necessarily a provider must have “determined that the injured person had an emergency medical condition.” And, before PIP medical expenses coverage can be limited to $2,500, subsection (1)(a)4, in sharp contrast to subsection (1)(a)3, expressly requires an authorized health care provider (as described in subsections (1)(a)1 or 2) must have “determine[d] that the injured person did not have an emergency medical condition.” Here, neither of these conditions precedent was met before the instant lawsuit was filed.

19. Instead of judicially creating deadlines or automatic coverage limitations that are not mentioned anywhere in the PIP statute, the emergency medical condition provisions of Section 627.736(1)(a)3 and 4 must be reviewed in light of the entire PIP statute. When interpreting the parties’ rights and duties under Section 627.736(1)(a)3 and 4, those provisions must be read in context with the other portions of Section 627.736 which govern the claim submission, payment, and dispute process, such as Section 627.736(4)(b), (5)(d), (6)(b), and (10), and all of those provisions must be given meaning. Subsections (4)(b) and (5)(d) explain what type of documentation must be submitted to constitute a sufficient PIP claim, when that documentation must be provided, and when the claim must be paid by the insurer. Subsection (6)(b) authorizes an insurer to request certain documentation before paying a PIP claim, and if subsection (6)(b) is properly invoked, it extends the deadline for payment of the PIP claim. Subsection (10) explains what must be included in a pre-suit demand letter before filing a PIP lawsuit.

20. Section 627.736(4)(b) and (5)(d) describe the documents and information that must be submitted to the insurer by a treating health care provider seeking PIP reimbursement, and when they must be provided. In applicable part, those subsections state:

(4) . . . (b) Personal injury protection insurance benefits paid pursuant to this section are overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. However:

1. If written notice of the entire claim is not furnished to the insurer, any partial amount supported by written notice is overdue if not paid within 30 days after written notice is furnished to the insurer. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 30 days after written notice is furnished to the insurer.

2. If an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge if this does not limit the introduction of evidence at trial. The insurer must also include the name and address of the person to whom the claimant should respond and a claim number to be referenced in future correspondence.

3. If an insurer pays only a portion of a claim or rejects a claim due to an alleged error in the claim, the insurer, at the time of the partial payment or rejection, shall provide an itemized specification or explanation of benefits due to the specified error. Upon receiving the specification or explanation, the person making the claim, at the person’s option and without waiving any other legal remedy for payment, has 15 days to submit a revised claim, which shall be considered a timely submission of written notice of a claim.

4. Notwithstanding the fact that written notice has been furnished to the insurer, payment is not overdue if the insurer has reasonable proof that the insurer is not responsible for the payment.

5. For the purpose of calculating the extent to which benefits are overdue, payment shall be treated as being made on the date a draft or other valid instrument that is equivalent to payment was placed in the United States mail in a properly addressed, postpaid envelope or, if not so posted, on the date of delivery.

6. This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion may be made at any time, including after payment of the claim or after the 30-day period for payment set forth in this paragraph.

. . . . .

(5) . . . (d) All statements and bills for medical services rendered by a physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a properly completed Centers for Medicare and Medicaid Services (CMS) 1500 form, UB 92 forms, or any other standard form approved by the office or adopted by the commission for purposes of this paragraph. All billings for such services rendered by providers must, to the extent applicable, follow the Physicians’ Current Procedural Terminology (CPT) or Healthcare Correct Procedural Coding System (HCPCS), or ICD-9 in effect for the year in which services are rendered and comply with the CMS 1500 form instructions, the American Medical Association CPT Editorial Panel, and the HCPCS. All providers, other than hospitals, must include on the applicable claim form the professional license number of the provider in the line or space provided for “Signature of Physician or Supplier, Including Degrees or Credentials.” In determining compliance with applicable CPT and HCPCS coding, guidance shall be provided by the Physicians’ Current Procedural Terminology (CPT) or the Healthcare Correct Procedural Coding System (HCPCS) in effect for the year in which services were rendered, the Office of the Inspector General, Physicians Compliance Guidelines, and other authoritative treatises designated by rule by the Agency for Health Care Administration. A statement of medical services may not include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services. For purposes of paragraph (4)(b), an insurer is not considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph and are properly completed in their entirety as to all material provisions, with all relevant information being provided therein.

(Emph. added). Case law confirms that the requirements of Section 627.736(4)(b) for providing an insurer with written notice of the fact of a covered loss are achieved solely by the submission of a substantially completed CMS 1500 claim form under Section 627.736(5)(b). See, Geico Gen. Ins. Co. v. Tarpon Total Health Care, 86 So.3d 585, 587-588 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1027a] (by submission of a substantially complete claim form, an insurer is put on notice of a covered claim under statutory requirements to provide written notice); USAA Cas. Ins. Co. v. Pembroke Pines MRI, Inc., 31 So.3d 234, 237-238 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D613b] (a properly completed claim form places an insurer on notice of a covered loss); United Auto. Ins. Co. v. Professional Medical Group, Inc., 26 So.3d 21, 23-25 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2500a] (a bill or statement need only be substantially complete and substantially accurate as to relevant information and material provisions in order to provide notice to an insurer).

21. Notably, the 30-day time period for payment identified in subsection (4)(b) is not triggered by submission or receipt of an emergency medical condition determination. Nothing in subsection (4)(b) or (5)(d) says anything about submitting an emergency medical condition determination to the insurer, and there is no such requirement in any other subsection of the PIP statute or any other statute pertaining to PIP. In sharp contrast, subsection (5)(e)1 of the PIP statute requires a “disclosure and acknowledgment form” to be completed at the time of the initial treatment or service, and subsection (5)(e)6 specifically states that form “shall be furnished to the insurer pursuant to paragraph (4)(b) and may not be electronically furnished.” Thus, under the doctrine of “expressio unius est exclusio alterius,” it is clear that an emergency medical condition determination is not required to be submitted along with the written notice of the fact of a covered loss. See, Pro-Art Dental Lab, Inc. v. V-Strategic Grp., LLC, 986 So.2d 1244, 1258 (Fla. 2008) [33 Fla. L. Weekly S503a] (under canon of statutory construction expressio unius est exclusio alterius, mention of one thing implies exclusion of another). Accordingly, the Defendant was not authorized to automatically limit the Insured Patient’s PIP medical expenses coverage to $2,500 merely because the Plaintiff did not submit an emergency medical condition determination along with its written notice of the fact of a covered loss. This is a burden that the PIP statute does not place on the Plaintiff. Similarly, the Insured Patient’s health care providers were not able to automatically presume that the Insured Patient’s PIP medical expenses coverage was $10,000 in the absence of a determination that the Insured Patient did have an emergency medical condition.

22. Where neither party is willing to concede the existence or non-existence of an emergency medical condition, the parties and the courts must look to the PIP statute to resolve the dispute. Instead of automatically presuming that the insured’s PIP medical expenses coverage is $2,500 or $10,000 when an emergency medical condition determination has not been performed, the Legislature has given insurers the right under subsection (6)(b) to attempt to resolve the dispute by requesting supplemental documentation in support of a PIP claim. Section 627.736(6)(b) states:

(6) DISCOVERY OF FACTS ABOUT AN INJURED PERSON; DISPUTES. —

. . . . .

(b) Every physician, hospital, clinic, or other medical institution providing, before or after bodily injury upon which a 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 by the insurer against whom the claim has been made, furnish 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 a 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 was incurred as a result of such bodily injury, and produce, and allow the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment if this does not limit the introduction of evidence at trial. Such sworn statement must 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.” A cause of action for violation of the physician-patient privilege or invasion of the right of privacy may not be brought against any physician, hospital, clinic, or other medical institution complying with this section. The person requesting such records and such sworn 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 that is the subject of the insurer’s inquiry is overdue if the insurer does not pay in accordance with paragraph (4)(b) or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later. As used in this paragraph, the term “receipt” includes, but is not limited to, inspection and copying pursuant to this paragraph. An insurer that requests documentation or information pertaining to reasonableness of charges or medical necessity under this paragraph without a reasonable basis for such requests as a general business practice is engaging in an unfair trade practice under the insurance code.

(Emph. added). A dispute concerning the existence or non-existence of an emergency medical condition is clearly within the scope of the “condition” referenced in subsection (6)(b). Thus, if after reviewing a PIP claim and the nature of the medical services provided, an insurer is concerned that the insured patient did not suffer from an emergency medical condition,³ the insurer has the option under subsection (6)(b) to request additional information in that regard, and to bear the reasonable costs associated with that request, as long as the insurer has a reasonable basis for making that request. If the insurer makes a proper and timely request under subsection (6)(b), the insurer’s 30-day payment deadline under subsection (4)(b) is extended. In the case at bar, it is undisputed that the Defendant did not make a (6)(b) request, and therefore, the payment deadline was not extended.

23. Next, before filing a PIP lawsuit, Section 627.736(10) requires a plaintiff to send the insurer a pre-suit demand letter. However, like subsections (4)(b) and (5)(d), nothing in subsection (10) requires an emergency medical condition determination to be submitted along with the pre-suit demand letter. Again, the PIP statute does not impose any deadlines for the creation or submission of an emergency medical condition determination.

24. In this case, it is undisputed that no emergency medical condition determination was submitted to the Defendant along with the Plaintiff’s “written notice of the fact of a covered loss” (i.e., CMS 1500 form) required by subsections (4)(b) and (5)(d), or the Plaintiff’s pre-suit demand letter under subsection (10). It is also undisputed the Defendant did not make a subsection (6)(b) request which would have extended the payment deadline. Instead, the Defendant elected to retain Dr. Libert to prepare an emergency medical condition determination. However, according to subsection (1)(a)4, Dr. Libert was not authorized to render a determination that the Insured Patient “did not have” an emergency medical condition because Dr. Libert had not provided initial or follow up services and care to the Insured Patient, as listed in subsections (1)(a)1 and 2.

25. After the Plaintiff submitted its timely and sufficient “written notice of the fact of a covered loss” (i.e., the CMS 1500 claim form) required by subsections (4)(b) and (5)(b), and after the Defendant failed to timely pay the claim without making a subsection (6)(b) request for additional documentation, subsection (4)(b)3 clearly authorized the Plaintiff to file suit at its “option and without waiving any other legal remedy for payment,” after submitting a pre-suit demand letter pursuant to subsection (10).

26. The Defendant suggests the 30-day payment deadline set forth in subsection (4)(b)⁴ did not begin to run for medical expenses benefits over $2,500 until the Plaintiff submitted Dr. Mahan’s emergency medical condition determination for the first time during the midst of the instant lawsuit. This Court disagrees. There is no provision in the PIP statute to support that suggestion. Subsections (1)(a)3 and 4 do not indicate when an emergency medical condition determination must be made, or whether, how, and when an emergency medical condition determination must be communicated or submitted to the insurer. There is nothing in Section 627.736 which prohibits an emergency medical condition determination from being communicated or submitted for the first time during a lawsuit on the PIP claim. However, an insurer who has any doubts or disputes as to whether the insured patient suffered an emergency medical condition, has the option to request (at its own expense) supporting documentation under subsection (6)(b). This Court finds the Defendant did not exercise that option in this case, and therefore, the subsection (4)(b) payment deadline expired 30 days after the Defendant was furnished with the Plaintiff’s CMS 1500 claim form.

27. This Court acknowledges several county and federal trial courts have recently construed subsection (1)(a)4 as creating an “automatic” $2,500 cap on PIP coverage unless and until an emergency medical determination is provided to the insurer. See, Enivert v. Progressive Select Ins. Co., Case No. 14-CV-80279, “Order Granting Defendant’s Motion to Dismiss” (S.D. Fla. July 23, 2014) [25 Fla. L. Weekly Fed. D123a]; Robbins v. Garrison Prop. & Cas. Ins. Co., Case No. 13-81259, “Order Granting Defendant’s Motion to Dismiss” (S.D. Fla. July 18 2014) [25 Fla. L. Weekly Fed. D125a]; Southside Chiropractic Centre, Inc., a.a.o. Terry Miller v. USAA General Indemnity Co., Case No. COCE 13-020731, “Order Granting Summary Judgment and Final Summary Judgment for Defendant” (Fla. Broward Co. Ct. June 10, 2014); Pembroke Pines MRI, Inc., a.a.o., Steven Winkle v. USAA Casualty Insurance Co., Case No. COCE 14-000542(55), “Order Granting Summary Judgment for Defendant” (Fla. Broward Co. Ct. October 17, 2014). However, at least one court has refused to adopt this interpretation. Dr. Craig Selinger, D.C., P.A., a.a.o., Jonathan Grant v. Enterprise Leasing Co. of Fla., LLC, Case No. 13-012816, “Order Granting Plaintiff’s Motion for Summary Judgment” (Fla. Broward Co. Ct. August 8, 2014) [22 Fla. L. Weekly Supp. 163a]. See also, Orthopedic Specialists LLP, a.a.o. Colleen Fontana v. USAA Cas. Ins. Co., Case No. 502013 SC 13901 (Palm Beach County Ct. June 3, 2014) [22 Fla. L. Weekly Supp. 131a] (applying subsection (6)(b)). These decisions are discussed below.

28. In Robbins, Enivert, and Precision, there was no determination as to whether the insured patient had an emergency medical condition, the PIP insurers automatically limited PIP coverage to $2,500, and there is no discussion as to whether the PIP insurers made a subsection (6)(b) request for such a determination. The Robbins court acknowledged that the PIP statute “does not contain a default provision establishing the coverage limit when a qualified medical professional ‘makes no determination that the patient did not have an emergency medical condition[,]’ ” but nonetheless concluded that an automatic $2,500 cap “gives effect to all of the statute’s provisions[.]” The Enivert and Precision courts reached the same result. However, these courts gave no meaning or effect to subsections (4)(b), (5)(d), (6)(b) and (10), and disregarded the specific conditions precedent set forth in subsections (1)(a)3 and 4, which clearly and expressly requires a determination that the insured patient “had” or “did not have” an emergency medical condition in order to impose a $10,000 or $2,500 limit on PIP medical expenses coverage. Because the Legislature did not create an automatic $2,500 cap, this Court cannot rewrite the statute to impose one, while at the same time ignoring the express requirements set forth in subsection (1)(a)4, and the various procedures set forth in subsections (4)(b), (5)(d), (6)(b) and (10), which are not addressed in Robbins, Enivert, and Precision.

29. Moreover, the Defendant points out that in Robbins, Enivert, and Precision, the courts relied upon legislative staff reports to discern the legislative intent. However, two of those legislative staff reports have disclaimers specifically stating that they do not reflect the Legislature’s intent or official position. See, House of Rep. Final Bill Analysis, Bill No. CS/CS/HB 119 (CS/CS/SB 1860) (May 7, 2012)(“This document does not reflect the intent or official position of the bill sponsor or House of Representatives”); Florida Senate 2012 Summary of Legislation Passed, Committee on Banking and Insurance, CS/CS/HB 119 (Undated) (“This summary is provided for information only and does not represent the opinion of any Senator, Senate Officer, or Senate Office.”). The third report does not have such a disclaimer, but it states that it was prepared by “staff” of the Florida Senate’s Committee on Banking and Insurance. See, Florida Senate House Message Summary, CS/CS/HB 119, 2nd Eng. (March 9, 2012) (“Prepared By: The Professional Staff of the Banking and Insurance Committee”). As a result, none of these three staff reports were prepared by the elected officials that actually voted on the legislation and none are reliable for discerning legislative intent. See, e.g., American Home Assur. Co. v. Plaza Materials Corp., 908 So.2d 360, 375-376 (Fla. 2005) [30 Fla. L. Weekly S553a] (Cantero, J., concurring in part, dissenting in part). Instead of resorting to staff reports, “[t]he words in the statute are the best guide to legislative intent.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1076 (Fla. 2006) [31 Fla. L. Weekly S358a]. The words in Section 627.736 do not include an automatic $2,500 cap on PIP coverage or a deadline for submission of an emergency medical condition determination, but nothing prohibits the insurer from specifically asking for the determination and the subsection (6)(b) sets forth the means to resolve a dispute. Accordingly, the instant case is distinguished, this Court rejects the Defendant’s reliance upon the legislative staff reports, and respectfully declines to follow Robbins, Enivert, and Precision.

30. Although this Court generally agrees with the Precision court’s lament that additional requirements and procedures would make the PIP statute’s emergency medical condition provisions more “workable,” the Legislature did not see fit to include an automatic $2,500 coverage cap, and therefore, insureds, insurers, litigants, and courts must work within the requirements and procedures expressly stated in the PIP statute, without adding to them or subtracting from them. As correctly explained in Selinger, the courts are “without power to . . . re-write the statute.”

31. In Southside, there was no emergency medical condition determination, the insurer automatically limited PIP coverage to $2,500, and there is no discussion as to whether the insurer made a subsection (6)(b) request for such a determination. Although the court acknowledged that the PIP statute “should be interpreted to give effect to every clause in it, and to accord meaning to all of its parts,” the court did not address or give meaning to subsections (4)(b), (5)(d), (6)(b), or (10), and essentially rewrote subsection (1)(a)4 to eliminate the requirements expressly established therein.

32. In Pembroke Pines, there was no pre-suit emergency medical condition determination, but after the PIP lawsuit was filed, the plaintiff submitted an affidavit from a physician who determined that the insured patient did have an emergency medical condition. The decision acknowledged that courts “must give full effect to all statutory provisions” and “avoid readings that would render part of a statute meaningless,” but the court did not address or give meaning to subsections (4)(b), (5)(d), (6)(b), or (10), and essentially rewrote subsection (1)(a)4 to eliminate the requirements expessly established therein. Giving meaning to all of these provisions, as this Court has done, shows that the Legislature created a claims process which does not impose a deadline for submitting an emergency medical condition determination, but gives insurers the option of requesting such a determination before paying the claim. Accordingly, this Court respectfully disagrees with the decision reached in Pembroke Pines.

33. Finally, in Orthopedic Specialists, the court found that the defendant insurer sent “two valid” subsection (6)(b) requests, which “tolled the time within which [the insurer] had to pay the claim,” but the plaintiff filed suit without complying with those requests. Under these circumstances, the Orthopedic Specialists court concluded that the insurer’s “obligation to pay did not arise until provider/Plaintiff complied with section 627.736(6)(b).” As a result, the defendant’s payment deadline did not expire and the plaintiff’s lawsuit was prematurely filed. However, in the case at bar, the Defendant never made a subsection (6)(b) request. Therefore, the Defendant’s payment deadline was not tolled or extended. Consequently, the Orthopedic Specialists decision is distinguishable from the case at bar.

D. Defendant’s “non-conditional payment” is a confession of judgment

34. For the reasons expressed above, the Defendant’s suggestion that this lawsuit was “premature” is incorrect. No language in the PIP statute supports that suggestion. The Plaintiff followed all of the statutory requirements and procedures for submitting its claim form and its pre-suit demand letter. There is no deadline for submitting an emergency medical condition determination, and no requirement that such a determination be submitted with the claim form or the pre-suit demand letter. Unless there is an actual determination by an authorized provider listed in subsection (1)(a)4 that the insured patient did not have an emergency medical condition, the condition for reducing PIP medical expenses coverage to $2,500 is not triggered. If the parties do not concede that an emergency medical condition did or did not exist, then the amount of PIP coverage remains in limbo until an authorized health care provider ultimately makes an emergency medical condition determination in compliance with subsection (1)(a)3 or 4. If an insurer wants to confirm whether such a determination exists before paying a PIP claim, the insurer can request one (at its own expense) pursuant to subsection (6)(b). Absent a timely and proper (6)(b) request, the PIP statute has no deadline or procedure for obtaining and submitting an emergency medical condition determination, and in the absence of such a determination, the parties must respectively proceed at their own risk.

35. In challenging the Plaintiff’s entitlement to reasonable attorneys’ fees and costs, the Defendant misplaces its reliance upon Medical Center of the Palm Beaches, d/b/a Central Palm Beach Physicians & Urgent Care, Inc., a.a.o. Carmen Santiago v. USAA Casualty Insurance Company, Case No. 502013SC012523XXXXMB (Palm Beach County Ct. Aug. 20, 2014) [22 Fla. L. Weekly Supp. 279a]. For example, in that case, the court clearly found that the insurer made a (6)(b) request for additional information, and this case does not include such a request. Instead, in the instant case, no emergency medical condition determination was submitted by the Plaintiff. Rather than making a (6)(b) request to resolve the dispute over the condition, the Defendant retained a non-treating physician who generated an unauthorized “peer review” report making a finding of a non-emergency medical condition. The Defendant rejected the Plaintiff’s claim based on that unauthorized report and the lack of any other determination. Subsection (1)(a)4 only authorizes a provider to make the non-emergency medical condition determination. Therefore the Defendant made a determination contrary to the statute and therefore unreasonably withheld payment under the policy. By failing to follow the procedures outlined in the PIP statute for limiting its insured’s coverage to $2,500, and then making “non-conditional payment” after receiving Dr. Mahan’s post-suit emergency medical condition determination, the Defendant did indeed make a confession of judgment. See, e.g., Wollard v. Lloyds & Companies, 439 So.2d 217 (Fla. 1983) (when insurance company agrees to settle with insured, insurance company has, in effect, declined to defend its position, and its agreement triggers insured’s right to recover attorneys’ fees and costs pursuant to §627.428); Ivey v. Allstate Ins. Co., 774 So.2d 679, 684-85 (Fla. 2000) [25 Fla. L. Weekly S1103a] (“where an insurer pays policy proceeds after suit has been filed but before judgment has been rendered, the payment of the claim constitutes the functional equivalent of a confession of judgment or verdict in favor of the insured”).

36. The Defendant also misplaces its reliance on Clifton v. United Casualty Insurance Company of America, 31 So.3d 826 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D364e], for the proposition that “the confession of judgment rule will operate only to penalize an insurance company for wrongfully causing its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the insurer’s power to resolve it” and only when “the filing of the suit acted as a necessary catalyst to resolve the dispute and force the insured to satisfy its obligations under the insurance contract.” In this case, the Defendant erroneously relied upon a lack of information and an unauthorized “peer review” report, intentionally generated by the Defendant, to limit PIP coverage. The Defendant failed to request additional information as permitted by subsection (6)(b), rejected a valid and sufficient written notice of claim, and rejected a valid and sufficient pre-suit demand letter. Thus, this lawsuit was necessary to demonstrate to the Defendant that Dr. Libert’s “peer review” statement was unauthorized, that PIP coverage is not automatically limited to $2,500 when there is no emergency medical condition determination, and that there is no deadline for the submission of an emergency medical condition determination. Paraphrasing the holding in Clifton, “an insurer that is aware of a dispute with its insured cannot simply ignore that dispute, wait until the insured files suit to demand [an emergency medical condition determination], pay [the claim thereafter]. . ., and then maintain that the payment does not constitute a confession of judgment as a matter of law.” Id., 31 So.3d at 831. “On the other hand . . . the insured must, at a minimum, clearly notify his or her insurer in a timely fashion of his or her dissatisfaction with the amounts paid.” Id. See also Tampa Chiropractic Center, Inc. v. State Farm Mut. Auto. Ins. Co., 141 So. 3d 1256 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D1441a]. In the case at hand, the Plaintiff clearly notified the Defendant in a timely fashion of its dissatisfaction with the amounts paid, and the Defendant was on notice that its payment was disputed. The Plaintiff’s post-suit submission of an emergency medical condition determination was not prohibited by the PIP statute, and the Defendant could have avoided this lawsuit by utilizing the provisions of subsection (6)(b) instead of engaging a third party, non-provider doctor and subsequently limiting coverage to $2,500 in an unauthorized manner, or by paying the claim in response to the CMS 1500 claim form or the pre-suit demand letter. Thus, even under Clifton, the Defendant’s post-suit payment is a confession of judgment, triggering the Plaintiff’s entitlement to an award of reasonable attorneys’ fees and costs.

E. Conclusion

37. Accordingly, the Defendant’s “Motion to Deny Plaintiff’s Entitlement to Any Attorneys’ Fees for Post-Suit Payment Made Pursuant to the Post-Suit Declaration of Emergency Medical Condition,” is hereby DENIED, and this Court hereby determines that the Plaintiff is entitled to an award of reasonable attorneys’ fees and costs.

38. This is a non-final order, and the Court reserves jurisdiction to determine the amount of reasonable attorneys’ fees and costs to be awarded to the Plaintiff.

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¹Of course, nothing prevents the insurer from conceding that the entire $10,000 of medical benefits is available despite the absence of an emergency medical condition determination, and nothing prevents a PIP insured from conceding that merely $2,500 of medical benefits is available despite the absence of such a determination. In this case, neither party conceded that issue.

²In contrast, Section 627.736(5)(e)1-9, Florida Statues (2013) contain specific detailed instructions and procedures for preparing and submitting “disclosure and acknowledgment forms” to the insurer.

³For example, it is not difficult to envision situations where the types of medical services rendered to the insured patient alone reflect that the insured patient had an emergency medical condition. In such situations, nothing in the PIP statute requires the insurer to insist upon the submission of an emergency medical condition determination in order to afford the full $10,000 of PIP medical expenses coverage. Similarly, in situations where the insured patient has incurred less than $2,500 of medical expenses, there is no reason for the health care provider to dispute the existence or non-existence of an emergency medical condition. In both scenarios, obtaining an emergency medical condition determination could result in unnecessary expenses.

⁴Under subsection (4)(b), PIP benefits “are overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same,” unless that deadline is extended by the insurer’s timely and proper subsection (6)(b) request. In this case, the Defendant did not make a subsection (6)(b) request.

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