22 Fla. L. Weekly Supp. 369a
Online Reference: FLWSUPP 2203RETTInsurance — Personal injury protection — Discovery — Any inquiry into whether plaintiff’s bill for emergency services was related and medically necessary, or whether charge was reasonable, is irrelevant given deposition testimony by insurer’s corporate representative indicating that plaintiff’s treatment was reasonable, related, and medically necessary and that the sole reason bill was not paid was that it was applied to deductible, and insurer’s actions in allowing the submitted bill in full and applying the full amount of the bill to the policy deductible — Motions to compel depositions denied — Plaintiff’s motion for protective order granted
EMERGENCY MEDICINE PROFESSIONALS, P.A., as assignee of Jessica Rettinger, Plaintiff, v. FIRST ACCEPTANCE INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2013 30524 COCI, Division 82. June 6, 2014. Christopher Kelly, Judge.ORDER[ Prior ruling published at 21 Fla. L. Weekly Supp. 569b]
THIS MATTER having come before this Court on May 8, 2014 pursuant to Defendant’s Motion to Compel Depositions, Plaintiff’s Motion for Protective Order (filing date October 5, 2013) and Plaintiff’s Motion for Protective Order (filing date February 19, 2014) and this Court having reviewed the file, heard and considered arguments of counsel and legal authority submitted by the parties, and being otherwise fully advised in the premises, does hereby make the following findings of fact and conclusions of law:
FINDINGS
1. The subject action involves a claim for personal injury protection insurance benefits filed by the Plaintiff, EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C., as assignee of Jessica Rettinger (“Claimant”) against the Defendant, First Acceptance Insurance Company, arising out of an accident that occurred on September 17, 2012.
2. On October 9, 2012, the Defendant appears to have received Plaintiff’s medical bill submitted for reimbursement under the policy for emergency services and care rendered to Claimant on September 17, 2012. Defendant allowed the submitted medical bill in full and applied the full amount of the bill to the policy deductible of $1,000.00.
3. The legal issue raised by the Plaintiff involves whether or not the enactment of Fla. Stat. §627.736(4)(c), which requires insurance carriers to set aside $5,000 in PIP benefits for payment to physician providers of emergency services and care rendered in a hospital setting, insulates those protected bills from application to a PIP policy deductible.
4. Plaintiff argues that by allowing the bill and fully applying it to the deductible, Defendant necessarily determined the claim was related and medically necessary, and that charge was reasonable, making the requested depositions irrelevant.
5. In support, Plaintiff cites to the deposition of Defendant’s Corporate Representative, Sheila Estes-Waugh, taken on September 19, 2013.
6. In her deposition, Ms. Estes-Waugh testified in summary that:
a. There was no dispute there was coverage for the accident. (page 18, lines 15-17).
b. Plaintiff’s treatment was reasonable, related and medically necessary. (page 50, lines 7-25; and page 58, lines 3-6).
c. The sole reason Plaintiff’s bill was not paid is that it was applied to the deductible. (page 57, line 24; and page 58, line 2).
7. The Defendant contends while the deductible application is an issue, it is not the sole legal issue. More specifically, the Defendant argues that reasonableness of Plaintiff’s charge, relatedness and medical necessity of the services provided are still unresolved, and that the depositions requested are relevant to those issues.
8. Countering the initial deposition testimony of Ms. Estes-Waugh, Defendant points to an “Errata Sheet” in which Ms. Estes-Waugh essentially recants her testimony as to whether the treatment was reasonable, necessary and related on the basis that the answers given in her deposition were either the result of her answer being incomplete, her not understanding the question asked, or the question called for a legal conclusion, which she is not qualified to answer.
9. Ms. Estes-Waugh further disavowed her initial deposition testimony by affidavit filed with this Court on May 6, 2014.
CONCLUSIONS OF LAW
10. Personal Injury Protection benefits are unique in that they are mandated and governed by the statute, yet issued under individual contracts of insurance.
11. The legislative intent of no-fault insurance statute is to “provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.” Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885 at 897 (Fla. 2003) [28 Fla. L. Weekly S287a], quoting Ivey v. Allstate Ins. Co., 774 So. 2d 679 at 683 (Fla. 2000) [25 Fla. L. Weekly S1103a].
12. In furtherance of the goal to promote resolution and avoidance of unnecessary litigation by the parties, the statutory scheme places duties upon both an insurer and a medical provider seeking reimbursement. The interplay between these two groups should be considered when ruling on discovery motions in the PIP context.
13. It is the duty of the insurance carrier, more specifically, the licensed adjuster working for an insurance carrier, to determine coverage under the policy of insurance. This duty is owed to the carrier’s customer, the Claimant, who contracted for certain benefits and rights under the statute. Accordingly, the point in time when the insurer processes a medical bill is of tantamount importance. At the point and time of processing a medical bill the legal issues are framed by the insurance carrier. See generally, Glenn v. Quintana, D.C., P.A. a/a/o Melissa Evans v. State Farm Mutual Automobile Ins. Co., 19 Fla. L. Weekly Supp. 882a (Fla. 11th Jud. Cir. Miami-Dade Co. 2012); United Automobile Insurance Co. v. Riverside Medical Associates, Inc. a/a/o Normandel Burke, 20 Fla. L. Weekly Supp. 389a (Fla. 17th Jud. Cir. Appellate 2012).
14. Defendant will approve the claim, deny the claim, or reduce the claim. Each of these options has specific ramifications for both the insurer and the insured/medical provider.
15. As pointed out by the Fifth District Court of Appeal, “under (4)(b) a defect in a submitted claim has to be brought to the provider’s attention by the insurer so it can be rectified.” Fla. Med. & Injury Ctr., Inc. v. Progressive Express, Ins. Co., 29 So. 3d 329 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b]. “If the insurer fails to specify the defect in the form so that it can be rectified as contemplated by section (4), it will be deemed to have waived its objection to payment.” Id.
16. Insurers communicate with medical providers primarily through explanations of benefits. The explanation of benefits in this matter gives no indication that the insurer found the services, unrelated, unnecessary or the amount charged as unreasonable. To the contrary, the Defendant made a determination that the Plaintiff’s bill was compensable and processed the bill in full by applying it to the deductible. Accordingly, “such a loss, by definition, will not be later challengeable.” United Auto Ins. Co. v. A 1st Choice Healthcare Systems, 21 So. 3d 124 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2268a].
17. The Florida Rules of Civil Procedure articulate a broad scope for discovery. Specifically, Rule 1.280(b)(1) states that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not grounds for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id.
18. Courts are required to follow and interpret this rule as it applies to each case’s specific facts. As noted by the Supreme Court “we do not believe that a litigant is entitled carte blanche to irrelevant discovery.” Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla. 1995) [20 Fla. L. Weekly S217a]. The Court went on to quash the district court decision “to the extent that it permits discovery even when it has been affirmatively established that such discovery is neither relevant nor will lead to the discovery of relevant information.” Id.
19. In the past, it has been argued that Plaintiff’s obligation in a PIP suit to prove by a preponderance of the evidence that the medical bills at issue were reasonable in amount, related, and medically necessary, which accordingly made those issues ripe for discovery.
20. This obligation by Plaintiff has been set forth by case law stating “in a lawsuit seeking benefits under the statute, both reasonableness and necessity are essential elements of a plaintiff’s case.” Derius v. Allstate Indem. Ind. Co., 723 So. 2d 271 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a].
21. In the past, this Court has relied upon Derius, in directing discovery to take place similar to that requested in the Motions currently before the Court.
22. Defendant argues that Derius should still control the instant case. This Court disagrees based on the factual distinctions of this case from Derius.
23. The Derius court was interpreting the plain language of the 1994 version of the PIP statute. Derius involved a jury trial on dates of service denied by the insurer based on an Independent Medical Examination.
24. In the instant case, Defendant allowed Plaintiff’s submitted bill in full, applied the bill to the policy deductible and made no mention that services were unrelated or unnecessary when the Defendant processed the bill.
25. Moreover, Defendant’s Corporate Representative acknowledged in her initial deposition testimony that the claim was reasonable and the treatment was necessary and related.
26. This Court is mindful of the language set forth in section 627.736(4)(b)6., which states:
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.
27. However, this right is not unfettered and must be considered in light of the procedural history of this cause.
28. Section 627.736, Florida Statutes, sets forth a premise that an insurer have “reasonable proof” that it is not responsible for the payment of benefits. Moreover, this section also sets forth that an insurer must have a “reasonable basis” to request more information on the issues of reasonableness, relatedness or medical necessity.
29. Defendant never placed the medical provider on notice of its contention that services were not medically necessary or related to the accident nor was notice given that the charge submitted was unreasonable. Defendant has failed to show any “reasonable proof” that this medical bill is unrelated, unnecessary, or unreasonable in amount. Defendant’s corporate representative testified that the charge was allowed in full and applied to the deductible in its entirety. If this Court were to allow Defendant to materially change its position after litigation commenced, without some showing of “reasonable proof,” it would run counter to the swift and automatic payment principle of PIP coverage as espoused by the Legislature.
30. The relatedness and/or medical necessity of the services are immaterial given the Defendant’s handling of this claim (by allowing the bill in full and applying the bill in full to the policy deductible). See e.g. Glenn v. Quintana, D.C., P.A. a/a/o Melissa Evans v. State Farm Mutual Automobile Insurance Company, 19 Fla. L. Weekly Supp. 882a (Fla. 11th Jud. Cir. Miami-Dade Co. 2012); United Automobile Insurance Company v. Riverside Medical Associates, Inc. a/a/o Normandel Burke, 20 Fla. L. Weekly Supp. 389a (Fla. 17th Jud. Cir. App. 2012); United Auto. Ins. Co. v A 1st Choice Healthcare Systems, 21 So. 3d 124 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2268a] and General Star Indemnity Company v. West Florida Village Inn, Inc., 874 So. 2d 26 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D348a]. To allow opposing parties to fight and compel discovery on unrelated, immaterial or irrelevant legal matters frustrates the clear intent of the statute and judicial economy.
31. This Court finds that the Defendant’s actions of processing the bill at issue and applying it in full to the deductible, and the initial deposition testimony of Defendant’s Corporate Representative, renders any inquiry into whether the claim was related and medically necessary, or whether the charge was reasonable irrelevant and immaterial to the specific facts of this case.
It is therefore ORDERED AND ADJUDGED that:
A. Defendant’s Motion to Compel Depositions is hereby DENIED.
B. Plaintiff’s Motion for Protective Order (filing date October 5, 2013) is hereby GRANTED.
C. Plaintiff’s Motion for Protective Order (filing date February 19, 2014) is hereby GRANTED.
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