22 Fla. L. Weekly Supp. 611a
Online Reference: FLWSUPP 2205BOYKInsurance — Personal injury protection — Coverage — Notice of loss — Where medical provider was originally informed that pedestrian struck by motor vehicle had no insurance, and provider filed claim within 35 days of learning of existence and identity of insurer of driver who struck pedestrian, provider’s submission of bills complied with PIP statute
BIGLEY AND ASSOCIATES, P.A. d/b/a PREMIER ORTHOPEDIC OF ORLANDO as assignee of RODERICK BOYKINS, Plaintiff, vs. FIRST FLORIDIAN AUTO AND HOME INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2010-CC-6751. March 24, 2014. Honorable Faye L. Allen, Judge. Counsel: Justin H. Presser, The Nation Law Firm, Longwood, for Plaintiff.
ORDER GRANTING PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT AND DENYINGDEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing originally on January 30, 2013 and was continued on February 17, 2014 on Plaintiff’s Motion for Summary Judgment as to the Defendant’s First Affirmative Defense and Defendant’s Motions for Summary Judgment. The Court, having reviewed the motion, the Court file, legal authorities and having heard argument of counsel, finds as follows:
STATEMENT OF FACTS
1. The facts relevant to the Defendant’s Motion for Summary Judgment are not in dispute and are supported by the record before this Court.
2. This is an action for breach of contract arising out of the Defendant’s failure to issue any PIP benefits for medical treatment its insured received at the hands of the Plaintiff.
3. On or about October 20, 2008, Roderick Boykins was a pedestrian involved in a motor vehicle accident (“the Accident”) in which he sustained personal injuries after he was struck by a vehicle driven by an insured of First Floridian.
4. Defendant issued a policy of insurance to its insured which provided Personal Injury Protection (“PIP”) benefits as required by law to comply with Florida Statutes §627.730 – §627.7405 (“the Policy”).
5. Although the exact date coverage was extended by First Floridian is unknown, coverage was ultimately extended to Mr. Boykins under its own insured’s policy sometime after confirming Mr. Boykins had no insurance of his own nor did he live with a resident relative who had insurance.
6. On October 29, 2008 Mr. Boykins first presented for treatment at Bigley & Associates, P.A. d/b/a Premier Orthopedic of Orlando (“Premier Orthopedics”). At his first visit, Mr. Boykins filled out a “Patient Registration” form indicating he had no automobile insurance.
7. Thereafter Premier Orthopedics continued to treat Mr. Boykins under a letter of protection for injuries sustained in the subject motor vehicle accident until December 19, 2008.
8. On April 14, 2009, almost four (4) months after the last date of treatment, legal counsel for Mr. Boykins’s injury claim informed Premier Orthopedics that there was automobile insurance and identified the Defendant, First Floridian, as the insurer.
9. Immediately after learning of First Floridian’s identity Premier Orthopedics sent a letter to First Floridian requesting that its previous bills be processed for payment. Included along with the April 14, 2009 correspondence was a signed assignment of benefits, original standard disclosure and acknowledgment form and CMS-1500 forms for the subject dates of treatment.
10. First Floridian received these records on April 17, 2009 and ultimately denied payment of the same on the basis that the bills were untimely, having been submitted more than 35 days dates after treatment.
11. Premier Orthopedics ultimately filed suit after First Floridian upheld its denial after the receipt of a statutory pre-suit demand letter.
12. Following the filing of the instant lawsuit, the Defendant moved for summary judgment based on the Plaintiff’s failure to comply with §627.736(5)(c)(1) and remit bills in a timely fashion.
13. Plaintiff also moved for summary judgment as to the Defendant’s first affirmative defense which states in full:
Plaintiff has failed and refused to comply with all conditions precedent to the bringing of this action. Plaintiff did not comply with Fla. Stat. §627.736(10), effective January 1, 2008, as Plaintiff failed to provide FIRST FLORIDIAN a valid 30-day pre-suit demand letter. The demand letter submitted to FIRST FLORIDIAN sought payment of bills that were not yet overdue and/or were never timely submitted and could not be overdue as a matter of law. The bills were submitted with a postmark date in excess of thirty-five (35) days from the date of service. The bills had not been submitted to FIRST FLORIDIAN for proper consideration or were untimely submitted meaning the bills were not overdue. A pre-suit demand may only seek payment of overdue charges and cannot be deemed valid should it address charges not yet submitted and/or overdue. The notice must be deemed to fail as a matter of law. Even if an additional amount was due, Plaintiff failed to identify the basis for the added amount due. Plaintiff only identified an amount and service, nothing more. Plaintiff did not specify each provider, the amount charged, the amount paid, and the amount due including as to whether 80% or 100% of the amount is due from Defendant.
14. Florida Statute §627.736(5)(c)(1) and (c)(2) states in its relevant part as follows:
(5) Charges for treatment of injured persons.
(c) 1. With respect to any treatment or service. . .the statement of charges must be furnished to the insurer by the provider and may not include, and the insurer is not required to pay, charges for treatment or services rendered more than 35 days before the postmark date. . . .
2. If, however, the insured fails to furnish the provider with the correct name and address of the insured’s personal injury protection insurer, the provider has 35 days from the date the provider obtains the correct information to furnish the insurer with a statement of the charges. The insurer is not required to pay for such charges unless the provider includes with the statement documentary evidence that was provided by the insured during the 35-day period demonstrating that the provider reasonably relied on erroneous information from the insured and either:
a. A denial letter from the incorrect insurer; or
b. Proof of mailing, which may include an affidavit under penalty of perjury, reflecting timely mailing to the incorrect address or insurer.
LEGAL CONCLUSIONS
15. Roderick Boykins had no insurance, including PIP insurance, at the time of accident.
16. First Floridian extended coverage to Mr. Boykins under its own insured’s policy only after investigation revealed Mr. Boykins had no PIP insurance of his own nor did he live with any resident relatives who maintained PIP insurance.
17. It is undisputed that the Plaintiff medical provider was informed by Mr. Boykins at the time of the first visit that Mr. Boykins did not have any PIP coverage.
18. It is undisputed that the Plaintiff medical provider was first informed of the existence and identity of First Floridian as Mr. Boykins’ PIP insurer on April 14, 2009.
19. It is also undisputed that the Plaintiff medical provider submitted its bills immediately upon learning of the identity of First Floridian. This clearly falls within 35 days of learning of the existence and identity of First Floridian.
20. As such, the Plaintiff complied with the statute and submitted what the Plaintiff was required to submit upon learning of the existence of PIP insurance after previously being informed that no PIP insurance was available.
21. This Court is persuaded by Desaussure III v. Direct General Insurance Company, 18 Fla. L. Weekly Supp. 335a (Fla. 7th Cir. Ct. February 11, 2011) and finds that the Plaintiff complied with the relevant statute in submitting its bills for reimbursement to the Defendant.
Therefore, it is Ordered and Adjudged that the Defendant’s Motion for Summary Judgment must be DENIED. The Plaintiff’s Motion for Partial Summary Judgment is GRANTED.
