22 Fla. L. Weekly Supp. 112a
Online Reference: FLWSUPP 2201EMERInsurance — Personal injury protection — Discovery — Depositions — Although insurer applied portion of emergency service provider’s bill to deductible without challenging reasonableness of charges, validity of assignment, lawfulness of treatment, or satisfaction of conditions precedent, information related to those issues is discoverable where the issues have been raised either in provider’s case in chief or in insurer’s answer
EMERGENCY MEDICINE PROFESSIONALS, P.A., as Assignee of Londarel Harris, Plaintiff, v. FIRST ACCEPTANCE INSURANCE COMPANY, INC., Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2013-32289-COCI, Division 82. April 4, 2014. Christopher Kelly, Judge. Counsel: Brett Sahm, Orlando, for Plaintiff. James S. Gentry, Dutton Law Group, P.A., Orlando, for Defendant.
ORDER DENYING PLAINTIFF’S MOTIONFOR PROTECTIVE ODER
THIS CAUSE having come before the Court on January 17, 2014, pursuant to the Plaintiff’s Motion for Protective Order as to Defendant’s Unilaterally Scheduled Depositions of Plaintiff’s Treating Physician, Person With the Most Knowledge of Issues Raised in the Complaint, Person With Most Knowledge of Assignment of Benefits, and Person with Most Knowledge of Reimbursement Contracts and Plaintiff’s Motion to Compel Adjuster Deposition, and the Court having reviewed the file, considered the arguments and legal authority submitted by the parties, and being otherwise fully advised in this matter, does hereby make the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. The subject action involves a claim for personal injury protection insurance benefits filed by the Plaintiff, EMERGENCY MEDICINE PROFESSIONALS, P.A. (hereinafter “Plaintiff”) as assignee of Londarel Harris (hereinafter “Claimant”) against the Defendant, FIRST ACCEPTANCE INSURANCE COMPANY, INC. (hereinafter “Defendant”), on June 26, 2013, arising out of an accident that allegedly occurred on February 14, 2013.
2. In its complaint, the Plaintiff generally alleged that the Claimant was injured in an automobile accident and received reasonable, necessary, and related emergency services and care from the Plaintiff, as a result. The Plaintiff further alleged that the claimant assigned his right to benefits for such treatment to the Plaintiff and that it completed all conditions precedent to entitle the Plaintiff to recovery from the Defendant.
3. The Defendant denied these allegations in its answer and affirmative defenses, and alleged affirmatively among its defenses that that the Plaintiff improperly billed for CPT Code 99285, that the Plaintiff lacks standing, that the Defendant’s adjustment was proper, and that the Plaintiff failed to satisfy all necessary conditions precedent.
4. The Defendant requested the opportunity to take the deposition of the Plaintiff’s Treating Physician, Person with the Most Knowledge of Issues Raised in the Complaint, Person with Most Knowledge of Assignment of Benefits, and Person with Most Knowledge of Reimbursement Contracts. The Defendant made efforts to obtain dates for such depositions, before setting the depositions unilaterally on October 17, 2013, to take place on January 21, 2014.
5. On January 10, 2014, the Plaintiff filed a Motion for Protective Order that argued the present case involved only the issue of whether the Defendant’s application of a portion of the Plaintiff’s bill for emergency services to the deductible, was proper under §627.736(4)(c), Florida Statues.
6. At the hearing before this court, the Plaintiff argued that even if this Court found additional issues for consideration, it should be able to pursue a resolution regarding the deductible before the Defendant be permitted to address any affirmative defenses.
7. Additionally, the Plaintiff argued that the Defendant was estopped under the Florida No-Fault Law from raising any defenses not contemplated in the correspondence sent by the adjuster before suit was filed.
8. Plaintiff also argued that the reasonableness of Plaintiff’s charge is not at issue in this case because the Defendant properly elected the permissive fee schedule methodology of payment in its policy of insurance.
9. In response, the Defendant argued the depositions of the Plaintiff’s representatives were targeted to address the issues raised by the pleadings and thus were permitted by the broad discovery provisions of the Florida Rules of Civil Procedure.
CONCLUSIONS OF LAW
10. 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 ground 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. (emphasis added).
11. From a practical standpoint, it is hard to come to terms with the concept that Defendant could approve 100% of the charged amount, apply a portion to satisfy the deductible, pay the remainder and later challenge anything other than whether the Defendant properly applied that portion of the Plaintiff’s bill for emergency services to the deductible.
12. Similarly, the parties having agreed that the Defendant properly elected the fee schedule method of reimbursement. Arguably, the election of fee schedule may very well negate Defendant’s ability to later challenge the reasonableness of Plaintiff’s charge. However, for the reasons set forth herein, the Court finds it unnecessary to reach a conclusion on that issue.
13. The decision of this Court is premised on the obligation of a plaintiff in a PIP claim to prove by a preponderance of the evidence that the medical bills at issue were reasonable, necessary, and related to the patient/assignor’s automobile accident. A plaintiff must also establish that its medical bills were lawfully rendered by qualified and licensed medical professionals, that it has standing to bring the action, and that it has complied with all conditions precedent, including submission of a pre-suit demand letter. § 627.736, Fla. Stat. (2013). Each of these issues — whether treatment was reasonable, related, and necessary, whether treatment was lawful, whether a proper assignment was made, and whether conditions were satisfied — have been raised in the pleadings for the present case, whether in the Plaintiff’s case in chief or the Defendant’s answer. See Derius v. Allstate Indem. Ins. Co., 723 So. 2d 271 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a], rev. denied, 719 So. 2d 892 (Fla. 1998) (finding that whether treatment is reasonable, necessary, and related to an underlying accident is the Plaintiff’s burden of proof).
14. Regardless of whether a deductible applies, the Florida No-Fault Law states that treatment must be lawful, reasonable, related, and necessary to an underlying accident. § 627.736(1), Fla. Stat. The Defendant has not conceded, admitted, or otherwise waived these issues in its action or pleadings. As a result, it necessarily follows that information pertaining to these issues is discoverable.
15. This Court finds that the depositions requested by the Defendant of the Plaintiff’s treating physician, person with most knowledge of issues raised in the complaint, person with most knowledge of assignments of benefits, and person with most knowledge of reimbursement contracts are squarely designed to address the issues raised by the pleadings through permissible discovery channels.
It is therefore ORDERED AND ADJUDGED that:
A. The Plaintiff’s Motion for Protective Order as to Defendant’s Unilaterally Scheduled Depositions of Plaintiff’s Treating Physician, Person with the Most Knowledge of Issues Raised in the Complaint, Person with Most Knowledge of Assignment of Benefits, and Person with Most Knowledge of Reimbursement Contracts and Plaintiff’s Motion to Compel Adjuster Deposition is DENIED.
B. The parties shall coordinate a date for the deposition of the following representative(s) within sixty (60) days of the date of this order to take place within ninety (90) days:
i. Plaintiff’s Treating Physician;
ii. Plaintiff’s Person With Most Knowledge of Issues Raised in the Complaint;
iii. Plaintiff’s Person With Most Knowledge of Assignment of Benefits; and
iv. Plaintiff’s Person with Most Knowledge of Reimbursement Contracts.
C. This Order is without prejudice to raise any additional grounds in support of the Motion for Protective Order as it relates to the persons to be deposed or areas of inquiry at deposition.
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