22 Fla. L. Weekly Supp. 450a

Online Reference: FLWSUPP 2204TMILInsurance — Personal injury protection — Coverage — Emergency medical condition — 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, insurer properly limited benefits to $2,500 where qualified provider has not determined that insured suffered emergency medical condition — Where insurer timely paid charges after post-suit receipt of emergency medical condition determination, payment did not constitute confession of judgment

C&R IMAGING OF JACKSONVILLE a/a/o Telly Miller, Plaintiff, v. USAA GENERAL INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COSO-14-002624, Division 60. December 3, 2014. Ian J. Richards, Judge. Counsel: Todd A. Landau, Landau & Associates, P.A., Hallandale Beach, for Plaintiff. Scott W. Dutton, Dutton Law Group, P.A., Tampa, for Defendant.

ORDER GRANTING SUMMARY JUDGMENTAND FINAL JUDGMENT FOR DEFENDANT

This matter came on to be heard on October 23, 2014 on the Defendant, USAA General Indemnity Company’s (“USAA”) Motion for Summary Judgment, and after hearing argument of counsel, the Court grants the Defendant’s motion based on the following findings of fact and conclusions of law.

STATEMENT OF FACTS

1. Plaintiff filed the instant action for payment of PIP benefits on behalf of the alleged assignor, Telly Miller, under a policy of insurance issued by USAA in regard to an automobile accident that occurred on July 5, 2013.

2. The subject contract of automobile insurance policy number 03192 12 37G 7101 9 was issued to Ellen Harris, residing at: 11464 Secretariat Lane W. Jacksonville, Duval County, Florida. Telly Miller, the assignor/claimant is listed as an operator under the policy and covered under the subject policy of insurance. The policy period was from March 22, 2013 through September 22, 2013.

3. At the time of the accident of July 5, 2013, the assignor/claimant Telly Miller sought PIP benefits under a policy of insurance issued by USAA which provided personal injury protection (PIP) benefits for covered persons under the policy.

4. Under the terms of the policy in effect at the time of the accident, the Defendant agreed to pay to or for the benefit of the insured/claimant reimbursement for medical services. The reimbursement is limited to $2500 unless a medical provider authorized in section 627.736 (1)(a)(3) & (4), determines that the covered person has suffered an emergency medical condition. Nothing provided to USAA showed that the determination was made at that time.

5. Pursuant to the Explanation of Reimbursement for the date of service September 30, 2013, no payment was made at that time — because there was no determination of an emergency medical condition by a medical provider authorized in section 627.736 (1) (a) (4) and the $2,500.00 had already been reimbursed, exhausting PIP benefits.

6. The Explanation of Reimbursement issued in this case to the claimant’s provider requested information as to whether a determination of an emergency medical condition had been made as to the claimant/insured.

7. Prior to suit, no medical provider authorized in section 627.736(1)(a)(3) submitted such a determination that the claimant/plaintiff had an emergency medical condition.

8. Without submitting the requested information, Plaintiff sent a purported pre-suit demand letter on November 25, 2013.

9. USAA responded stating that the $2500 reimbursement limits had been reached and in order to make additional reimbursement decisions, documentation was needed regarding the determination of an emergency medical condition by an authorized medical provider. No documentation was received by USAA stating an emergency medical condition existed for the claimant at that time.

10. The Defendant reviewed and adjusted the bills received in accordance with the terms of the Policy and the applicable provisions of the Florida Motor Vehicle No-Fault Law. See Affidavit. To that end, it limited at that time, the reimbursements to $2,500.00 because the medical records did not show that a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, a physician assistant licensed under chapter 458 or chapter 459, or an advanced registered nurse practitioner licensed under chapter 464 had determined that the claimant had an emergency medical condition as statutorily required to authorize additional reimbursement.

11. The Defendant subsequently received notice that a physician licensed under chapter 458 or chapter 459, had determined that the claimant had an emergency medical condition.

12. Pursuant to the Policy and the applicable provisions of the Florida Motor Vehicle No-Fault Law, upon receipt of the determination of an emergency medical condition, reimbursement beyond the policy limits of $2,500.00 became payable.

13. Thereafter, payment was timely issued by the Defendant to providers, including the Plaintiff, in accordance with the terms of the Policy and statute before their claims became overdue.

14. The key points argued at the October 23, 2014 motion for summary judgment hearing was “when does up to $10,000 in personal injury protection policy limits become available?” and whether the Defendant’s post-suit payment, made after its receipt of the emergency medical condition, results in a “confession of judgment” by payment.

15. On the first issue, the Plaintiff contends that the reimbursement of personal injury protection medical benefits automatically defaults to $10,000 unless a treating provider opines that the patient did not have an emergency medical condition. The Defendant, in turn argues that up to $10,000 only becomes available when it has been determined that the injured person had an emergency medical condition by a qualified provider and the Defendant receives written notice of that determination.

16. During the course of the argument and in its supporting memorandum the Defendant pointed out that a total of six courts, four county courts and two federal courts, have agreed that policy limits up to $10,000 only becomes available when a qualified provider has determined that the patient had an emergency medical condition.¹ Notably, no court, county or federal, has agreed with the position taken by the Plaintiff on the issue.

17. This Court agrees with the position taken by the Defendant on this issue.

18. Secondly the Plaintiff argues that irrespective of the foregoing issue, the Defendant paid the Plaintiff’s charges post-suit and therefore the Defendant cannot prevail on it motion for summary judgment.

19. This Court disagrees with the position taken by the Plaintiff because the evidence shows that the Defendant did not “wrongfully” withhold or deny the payment of medical benefits. In fact, once the requested information regarding whether or not the insured had an emergency medical condition was provided, the Defendant timely paid the Plaintiff’s charges.

GOVERNING STATUTES AND POLICY TERMS

The issues involved in the subject lawsuit depend on the construction of the 2013 revision of Florida Motor Vehicle No-Fault Law and the Defendant’s Policy which incorporates its terms as follows:

The medical benefits provide reimbursement only for:

***

(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 chapter 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 a provider listed in subparagraph 1. or subparagraph 2. determines that the injured person did not have an emergency medical condition.

An emergency medical condition is defined as “a medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in . . . (a) serious jeopardy to patient health, (b) serious impairment to bodily functions, [or] (c) serious dysfunction of any bodily organ or part. See § 627.732(16), Fla. Stat. (2013) and Policy.

INTERPRETATION OF THE STATUTE AND POLICY

Courts have long held that a “statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts.” Jones v. ETS of New Orleans, Inc., 793 So. 2d 912, 914-15 (Fla. 2001) [26 Fla. L. Weekly S549a]. When read together, the reimbursement clauses of the statute have a clear meaning — reimbursement of the insured’s medical benefits is limited to $2500 in the absence of a determination that the patient had an emergency medical condition by a qualified provider. In the opinion of this court, no other reading of the statute makes sense.

As noted by the Defendant, six courts have now agreed with Defendant’s position that EMC benefits are only available where a determination of an EMC has been provided to the insurer by a statutorily authorized medical provider. Enivert v. Progressive Select Ins. Co., Case No. 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 Prop. & Cas. Ins. Co., Case No. 13-81259 (S.D. Fla. July 18, 2014) [25 Fla. L. Weekly Fed. D125a] (Order granting defendant’s motion to dismiss); Southside Chiropractic Centre, Inc., v. USAA Gen. Ind. Co., Case No.: COCE 13-020731 (Fla. Broward Cty. Ct. June 10, 2014) [22 Fla. L. Weekly Supp. 152a]; Orthopedic Specialists LLP v. USAA Cas. Ins. Co., Case No.: 502013 SC 13901 (Fla. Palm Beach Cty. Ct. June 3, 2014); Precision Diag., Inc. v. United Serv. Auto. Assoc., Case No. CONO 14-001263(72) (Fla. Broward Cty. Ct. Aug. 14, 2014) [22 Fla. L. Weekly Supp. 389c] (Final Judgment determining that $2500 cap applied absent a determination of an emergency medical condition) (Levy, J.); Medical Center of the Palm Beaches v. USAA Casualty Ins. Co., Case No. 50 2013 SC 012523 (Fla. Palm. Beach Cty. Ct. Aug. 20, 2014) [22 Fla. L. Weekly Supp. 279a] (granting USAA summary judgment on the $2500 limitation and certifying as a question of great public importance whether a certification by a statutorily authorized person is necessary to make benefits above $2500.00 available).

According to United States District Judge Robert N. Scola in Robbins v. Garrison Property & Cas. Ins. Co., “The 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.’ ” . . . “For example, chiropractors are not listed among the medical professionals who may determine that an injured person had an emergency medical condition. § 627.736(1)(a)(3), Fla. Stat. . But, chiropractors are included in the list of medical professionals who may determine that an injured person did not have an emergency medical condition. § 627.736(1)(a)(4), Fla. Stat. . Under the Robbins interpretation, if the chiropractor remains silent, the injured person would be able to avoid the lower $2500 limit on PIP medical benefits.”

This rationale is similar to the Order Granting Defendant’s Motion To Dismiss With Prejudice from United States District Judge Kenneth L. Ryskamp in Enivert v. Progressive Select Ins. Co., where the court stated that “Enivert argues that, because a medical provider never determined that she did not have an EMC, she is entitled to full benefits. However, she ignores the language of Subsection (1)(a)(3). When interpreting a statute, the court must “construe the language within the context of the entire statutory scheme.” The PIP statute, read in its entirety, clearly indicates that a medical provider’s determination is required in order to receive reimbursement under either subsection of the statute. A medical provider did not determine that Enivert had an EMC, and she contends that she did not have one. Therefore, Enivert is not entitled to the full $10,000 in benefits and her claim fails.” (citations omitted).

Courts have long held that statutes must be read to give effect to each and every clause and to provide harmony and meaning to all their parts. Jones v. ETS of New Orleans, Inc., 793 So. 2d 912, 914-15 (Fla. 2001) [26 Fla. L. Weekly S549a]. Thus, “statutory phrases are not to be read in isolation, but rather within the context of the entire section.” Id. at 915. “It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole. Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992). It is a cardinal rule of statutory interpretation that courts should avoid readings that would render part of a statute meaningless. Id. at 456. The provisions of § 627.736, Fla. Stat. (2013), specifically subsections (1)(a)(3) and (1)(a)(4), have a clear and definite meaning when read together in harmony with one another, giving effect to all provisions, avoiding a reading that would render any part meaningless and avoiding an interpretation that would lead to an absurd result.² That is, a qualified provider must determine that the patient had an emergency medical condition in order for up to $10,000 to be available for reimbursement of medical expenses. Further, in the opinion of this Court, no provider who is a non-qualified physician would ever author a report to state that its patient did not have an emergency medical condition thereby limiting reimbursement of its own medical charges to $2500 instead of $10,000. To adopt such an argument would lead to the type of statutory interpretation that would lead to an absurd result that is to be avoided according to the courts.

In sum, § 627.736(1)(a)(3) and (1)(a)(4), Fla. Stat. address the amount of the services available to a claimant. To that end, subsection (1)(a)(3) provides for benefits of up to $10,000.00 if an authorized physician, dentist, PA, or ARNP has determined the claimant had an emergency medical condition. If such benefits were authorized regardless of the determination, subsection (1)(a)(3) would be meaningless, as would subsection (1)(a)(4), which follows. By including the provision under which additional benefits may be authorized before the provision regarding the limitation of benefits, the legislature indicated by the terms it selected that § 627.736, Fla. Stat. (2013) would provide limited benefits based on the severity of the injury. No other interpretation can read the provisions in harmony and give effect and meaning to all.

Moreover, in the Defendant’s Explanation of Reimbursement for the Plaintiff’s charges at issue the Defendant clearly notified the Plaintiff that the statutory policy limits of $2,500.00 had been paid, and requested the Plaintiff to provide information regarding the determination of the claimant’s emergency medical condition by a medical provider authorized or qualified in section 627.736(1)(a)(3), Fla. Stat. in order to justify any additional reimbursement. The Court deems this statement contained within the Explanation of Reimbursement is a request for information pursuant section 627.736(6)(b), Fla. Stat. regarding the history, condition, treatment, dates, and costs of treatment. As such, the statement tolls the time when charges are due or overdue. See Professional Med. Group, Inc. v. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 1000b (Fla. Miami-Dade Cty. Ct. Jul. 11, 2006) (King, J.); Wellington Chiropractic Center of Palm Beach, Inc. v. Nationwide Mut. Ins. Co., 11 Fla. L. Weekly Supp. 929b (Fla. Palm Beach Cty. Ct. Aug. 3, 2004) (Evans, J.).

The Defendant’s Explanations of Reimbursement clearly states that in order for the Defendant to make additional reimbursement decisions above the statutory $2500 reimbursement limit that the Plaintiff needed to provide a determination of the claimant’s emergency medical condition by a provider authorized by statute. The court also disagrees with the Plaintiff’s interpretation that the Defendant has to provide a letter or medical determination from the treating physician that the plaintiff did not have an emergency medical condition or else payment defaults to $10,000 in medical benefits. It is clear from the statutory structure that up to $10,000 of medical benefits only becomes available if the injured person had an emergency medical condition.

Furthermore, a demand letter “may not be sent until the claim is overdue.” § 627.736(10)(a) (2013), Fla. Stat. Plaintiff’s demand letter was sent before the claim became overdue under § 627.736(1)(a)(3)-(4) (2013), Fla. Stat., and § 627.736(6)(b), Fla. Stat., and thus was premature. Because the lawsuit was premature and should not have been filed at all, Plaintiff cannot be entitled to fees and costs, as § 627.428, Fla. Stat. (2013) does not apply to its lawsuit. See U.S. Security Ins. Co. v. TMJ Testing, Inc., 13 Fla. L. Weekly Supp. 862a (Fla. 13th Cir. Ct. (App.) Apr. 12, 2006); USAA Cas. Ins. Co. v. American MRI, LLC, 19 Fla. L. Weekly Supp. 534a (Fla. 11th Cir. Ct. (App.) Mar. 19, 2012).

THE DEFENDANT’S PAYMENT WAS NOTA CONFESSION OF JUDGMENT

Florida courts consistently look for “wrongful” conduct by an insurer before awarding attorney’s fees under § 627.428, Fla. Stat. The Florida Supreme Court has interpreted that statute as “impos[ing] the obligation to pay a fee award upon an insurer that has wrongfully contested an insured’s valid claim. “ Petty v. Florida Ins. Guar. Ass’n, 80 So. 3d 313, 316 (Fla. 2012) [37 Fla. L. Weekly S34a]; see also New York Life Ins. Co. v. Shuster, 373 So. 2d 916, 918 (Fla. 1979) (explaining that “for an insurer to be liable for attorney’s fees there must be a wrongful withholding of payment. . . .”). Similarly, the Florida appellate courts have held that § 627.428 “penalize[s] a carrier for wrongfully causing its insured to resort to litigation to resolve a conflict when it was reasonably within the carrier’s power to do so.” Gov’t Employees Ins. Co. v. Battaglia, 503 So. 2d 358, 360 (Fla. 5th DCA 1987) ; see also State Farm Florida Ins. Co. v. Lorenzo, 969 So. 2d 393, 398 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D1791e] (holding that § 627.428 “ha[s] consistently been interpreted to authorize recovery of attorney’s fees from an insurer only when the insurer has wrongfully withheld payment of the proceeds of the policy.”). All other Florida appellate courts agree, as does this Court.

The recent holding of Omega Ins. Co. v. Johnson, 2014 WL 4275189, 39 Fla. L. Weekly D1911a (Fla. 5th DCA 2014), a case which strongly parallels the facts of this case, supports this Court’s ruling that the Defendant’s post-suit payment did not result in a confession. In Omega Ins. Co., a claimant sought insurance benefits under a sinkhole damage policy. Omega processed the claim by following the framework set forth for the investigation of sinkhole claims under Chapt. 627, Fla. Stat. Under this framework, Omega commissioned a professional engineering and geology firm to conduct testing on the subject property. Upon receipt of a report from the engineering and geology firm discounting the existence of a sinkhole, Omega immediately contacted the claimant by mail to both announce the denial of the claim and to inform the claimant of her option under Chapt. 627 to engage in a neutral investigation.

The claimant in Omega Ins. Co., 39 Fla. L. Weekly D1911a failed to respond to Omega’s letter, instead obtaining a report from a civil engineering firm to evaluate her sinkhole claim. The firm’s report supported the claimant’s claim of sinkhole damage. The Court noted:

With this report in hand, Johnson filed the underlying lawsuit (almost a year after Omega sent the denial letter), alleging that Omega breached Johnson’s homeowner’s insurance policy by failing to pay the benefits due Johnson. Neither the report listing sinkhole activity as a cause of damage nor the findings contained therein were relayed to Omega prior to the institution of the lawsuit. Omega obtained a copy of the report for the first time during the course of discovery.

After obtaining the claimant’s report through discovery, Omega filed for a neutral evaluation pursuant to § 627.7074, Fla. Stat. The neutral evaluation found that there was a sinkhole loss that required remediation. Omega thereupon agreed to pay the claim. The claimant in Omega claimed that Omega’s willingness to pay constituted a Confession of Judgment.

The court in Omega held that the post-suit payment by Omega of the claim amount did not constitute a Confession of Judgment, because a “wrongful or unreasonable denial of benefits that forces the insured to file suit is necessary to apply the doctrine and award fees under the statute.” In Omega, by contrast, there was no wrongful or unreasonable denial of benefits by the insurer. As stated by the court in Omega:

When Omega received the report, it sent a copy to Johnson stating that it was denying her claim. At this point, Omega had the right to presume the report was correct and to deny the claim based thereon. After Johnson received the report that she had commissioned, rather than present her countervailing evidence to Omega to rebut the presumption or at least notify Omega that she disagreed with Omega’s report and attempt to further discuss her claim, Johnson kept her report to herself and, approximately a year after receipt of Omega’s initial report and denial letter, filed suit alleging that Omega breached the policy. Omega then opted to pursue the neutral evaluation procedure, and when the neutral evaluator rendered his report concluding that the damage was caused by sinkhole activity, Omega paid the claim.

Id. at *2.

In this case, as in Omega, there was no wrongful or unreasonable denial by Defendant of payment for Plaintiff’s PIP claim. Rather, pursuant to proper procedure, Defendant responded to Plaintiff’s claims with an Explanation of Reimbursement for each claim, and stating that amounts in excess of $2500 were denied because there was no emergency medical condition determination, and requesting that an EMC determination be provided, if one existed. Like the plaintiff in Omega, the Plaintiff in this case failed to provide evidence of that emergency medical condition determination. Instead, as in Omega, Plaintiff prematurely filed suit.

Like the determination in Omega, Defendant here eventually received, after Plaintiff had already filed suit, an emergency medical condition determination from a qualified medical professional. At that point, as per the terms of the subject policy and the law, Defendant timely paid the requisite PIP benefits to Plaintiff. As in Omega, Defendant’s payments cannot be found to be a confession of judgment as there was no “wrongful” or “unreasonable denial” by Defendant which required Plaintiff to file suit.

Rather, Defendant’s payment of benefits to Plaintiff was pursuant to the clear provisions of the subject policy and Florida law. Plaintiff did not have to file its lawsuit in order to receive payment; payment would have been issued regardless as soon as the determination of an emergency medical condition was received, as the Defendant indicated in its correspondence with the Plaintiff and its counsel. USAA’s payment was consistent with its legal position.

A review of the relevant law, and its application to the facts of this case show that a “confession of judgment” did not occur in this case because Defendant’s payment occurred only after it received a determination that its insured had an emergency medical condition. This is the precise information the Defendant was requesting from the Plaintiff and the insured’s other medical providers. Therefore, with regard to this case, Defendant has neither changed position, nor has Defendant conceded that its original defenses were erroneous, nor have such defenses been negated.

Courts have long recognized that a “confession of judgment” does not result in every case in which insurance company pays a claim during active litigation. See State Farm Florida Ins. Co. v. Lorenzo, 969 So. 2d 393, 398 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D1791e] (emphasis added). Instead, the “confession of judgment” rule has “consistently been interpreted to authorize recovery . . . only when the insurer has wrongfully withheld payment of the proceeds of the policy,” and later changed its position as a result of litigation. Id. Stated differently, “the question of whether an insurer’s post-suit payment. . . constitutes a confession of judgment will be determined based on whether the filing of the suit acted as a necessary catalyst to resolve the dispute and force the insurer to satisfy its obligations under the insurance contract.” Clifton v. United Cas. Ins. Co. of Am., 31 So. 3d 826, 829 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D364e]. See also State Farm Florida Ins. Co., 969 So. 2d, 398.

In State Farm v. Lorenzo, supra, State Farm issued payment for damages related to a fire, explaining that a portion of the payment would be issued when the work was complete or the insureds presented State Farm with a signed agreement with a general contractor. Instead of presenting their evidence, the insureds sued State Farm for an alleged breach of contract. After suit was filed, State Farm learned the insureds had entered into a signed agreement with a general contractor and paid the remainder of the replacement cost. The insureds contended the payment was a confession of judgment. The court ultimately found the confession of judgment doctrine only “applies where the insurer has denied benefits the insured was entitled to, forcing the insured to file suit, resulting in the insurer’s change of heart and payment before judgment,” which was simply not present on its facts. Citing Tristar Lodging, Inc. v. Arch Speciality Ins. Co., 434 F. Supp. 2d 1286 (M.D. Fla. 2006) aff’d sub nom. Tristar Lodging, Inc. v. Arch Specialty Ins. Co., 215 Fed. Appx. 879 (11th Cir. 2007) , the court reasoned:

Plaintiff cites cases applying the confession of judgment doctrine for the proposition that the Court must award fees whenever a Plaintiff sues an insurer and money is later paid. The Court declines to read the statute so broadly. If Plaintiff were correct, then it would behoove every policyholder to sue whenever a claim is contemplated, because, whether the claim is eventually adjusted downward or paid in full, attorney’s fees would automatically result. This would be contrary to the stated purpose of the statute: discouraging lawsuits and encouraging timely payments of claims. If the insurer knows it will eventually have to pay attorney’s fees regardless, it loses the incentive to pay the claim timely, and this would raise the likelihood that the claim will be contested. Moreover, there is a fundamental due process concern in finding that an insurance company which appropriately pays a valid claim according to the Policy terms must still pay attorney’s fees, because a claimant sued it to do what it was already in the process of doing. This statute has consistently been interpreted to authorize recovery of attorney’s fees from an insurer only when the insurer has wrongfully withheld payment of the proceeds of the policy.

For similar reasons, the Court rejects Plaintiff’s argument that payments made pursuant to the provisions of the Policy are somehow converted into a confession of judgment if done after suit is prematurely filed. The filing of a lawsuit does not extinguish the insurer’s obligations under the Policy to adjust and pay the claim. While Florida law does hold that payments are treated as confessions of judgment where an insurer first disputes the claim and then settles, the existence of a bona fide dispute and not the mere possibility of a dispute, is a crucial condition precedent to such a holding. Here, as noted above, there has been no such breach shown.

State Farm Florida Ins. Co., 969 So. 2d, 398 (emphasis added) (internal citations omitted).

The Tristar Lodging, Inc., 434 F. Supp. 2d 1286 case involved a claim for property damage related to hurricane claims. There, the federal district court recognized that Florida Courts have held, in certain circumstances, that payment of the claim is the functional equivalent of a confession of judgment or verdict in favor of the insured, but have made clear that the doctrine only applied where a plaintiff was compelled to sue because the insurance company wrongfully caused it to resort to litigation. The courts have reasoned that an insurer should not be able to avoid statutory consequences by waiting until suit is filed before paying proceeds. Id. at 1295, 1297-1299. Like Lorenzo, the Court did not find litigation necessary and a change of heart of the insurer in the facts before it and thus declined to award fees against the insurer. Id. See also Beverly v. State Farm Florida Ins. Co., 50 So. 3d 628, 633 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D2373b] (finding an insurer’s post-suit payment of additional policy proceeds entitles the insured to § 627.428 attorney’s fees where the insurer “wrongfully caus[ed] its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company’s power to resolve it); Clifton, 31 So. 3d, 829 (finding the confession of judgment rule is not absolute, but rather “[w]hile Florida law does hold that payments are treated as confessions of judgment where an insurer first disputes the claim and then settles, the existence of a bona fide dispute and not the mere possibility of a dispute, is a crucial condition precedent to such a holding.”).

In USAA Cas. Ins. Co. v. American MRI, LLC a/a/o John Romero, 19 Fla. L. Weekly Supp. 534a (Fla. 11th Cir. Ct. (App.) Mar. 19, 2012), the Eleventh Circuit Court in its appellate capacity applied the well-established principles articulated in Tristar Lodging, Inc., Lorenzo, and their progeny to an action for PIP benefits. There, an MRI provider sued on an assignment of benefits for PIP insurance. After instituting its action for benefits, the Plaintiff offered to abate the action in order to resolve a demand letter issue raised by the Defendant as an affirmative defense. Before the court could rule on the Plaintiff’s Motion to Stay, it served a second demand letter and the Defendant responded with payment. The trial court determined the payment was a confession of a disputed claim, but the appellate court disagreed. Reversing the trial court, it found that “[u]nder Florida law, it is the insurer’s unilateral decision to settle an insurance claim . . . that triggers the insured’s entitlement to attorney’s fees under the statute.” Id. As the insurer paid in response to the demand letter and its policy obligations, the court could not find a unilateral decision to settle a disputed claim as a result of litigation and thus could not award entitlement to fees and costs. See also Vivas v. State Farm Florida Ins. Co., 138 So. 3d 479 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D487a], reh’g denied (May 15, 2014).

In sum, Omega, Lorenzo, Tristar, American MRI/Romero, and their progeny are directly on point. As in those cases, the Defendant’s timely payment was made pursuant to its obligations under the policy and the law. Here, the Defendant consistently adopted the position that benefits are limited to $2,500.00, until it received notice that the claimant had an “emergency medical condition” as determined by a qualified provider. This position was well articulated in the explanation of benefits and the response to the presuit demand sent to the Plaintiff. When the determination of an EMC was finally received, the Defendant issued timely payment accordingly. There was no change of heart or change in position as required by precedent that binds this court. Accordingly, there was clearly no “confession of judgment” by Defendant in this case. On the contrary, it is clear that a grant of summary judgment in favor of Defendant is appropriate.

It is therefore,

ORDERED AND ADJUDGED that the Defendant USAA General Indemnity Company’s, Motion for Final Summary Judgment against the Plaintiff, C&R IMAGING OF JACKSONVILLE a/a/o Telly Miller, is GRANTED. It is further

ORDERED AND ADJUDGED that the Plaintiff, C&R IMAGING OF JACKSONVILLE a/a/o Telly Miller, take nothing by this action and that Defendant, USAA General Indemnity Company, shall go hence without day. The Court reserves jurisdiction to determine the entitlement to and the amount of attorney’s fees and costs.

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¹Enivert v. Progressive Select Ins. Co., Case No. 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 Prop. & Cas. Ins. Co., Case No. 13-81259 (S.D. Fla. July 18, 2014) [25 Fla. L. Weekly Fed. D125a] (Order granting defendant’s motion to dismiss); Southside Chiropractic Centre, Inc., v. USAA Gen. Ind. Co., Case No.: COCE 13-020731 (Fla. Broward Cty. Ct. June 10, 2014) [22 Fla. L. Weekly Supp. 152a]; Orthopedic Specialists LLP v. USAA Cas. Ins. Co., Case No.: 502013 SC 13901 (Fla. Palm Beach Cty. Ct. June 3, 2014) [22 Fla. L. Weekly Supp. 389c]; Precision Diag., Inc. v. United Serv. Auto. Assoc., Case No. CONO 14-001263(72) (Fla. Broward Cty. Ct. Aug. 14, 2014) (Final Judgment determining that $2500 cap applied absent a determination of an emergency medical condition) (Levy, J.); Medical Center of the Palm Beaches v. USAA Casualty Ins. Co., Case No. 50 2013 SC 012523 (Fla. Palm Beach Cty. Ct. Aug. 20, 2014) [22 Fla. L. Weekly Supp. 279a] (granting USAA summary judgment on the $2500 limitation and certifying as a question of great public importance whether a certification by a statutorily authorized person is necessary to make benefits above $2500.00 available).

²Courts must adhere to the reasonable and obvious meaning of a statute’s plain language over a meaning that would lead to an absurd result. See Tampa-Hillsborough County Expressway Auth., 444 So. 2d 926 (reversing the interpretation a district court gave to a statute regarding compensation to business owners in the event of an exercise of eminent domain, finding that the interpretation would easily lead to absurd and unfair results). As the Supreme Court stated in Tampa-Hillsborough County Expressway Auth., 444 So. 2d 926, “an interpretation of the language of a statute that leads to absurd consequences should not be adopted when, considered as a whole, the statute is fairly subject to another construction that will aid in accomplishing the manifest intent and the purposes designed.” Tampa-Hillsborough County Expressway Auth., 444 So. 2d at 929. Here, the interpretation of limited benefits advocated by the Defendant is the reasonable and workable result suggested by the plain language of the statute, read as a whole. Thus, this Court must determine that the Plaintiff, as assignee of the claimant, is entitled to reimbursement of up to $2,500.00, absent a reported emergency medical condition determination by a qualified physician, dentist, PA, or ARNP.

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