22 Fla. L. Weekly Supp. 957a
Online Reference: FLWSUPP 2208KOOSInsurance — 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 until qualified provider determined that insured suffered emergency medical condition — No merit to argument that insurer was required to pay benefits up to $10,000 unless there was determination of absence of emergency medical condition — Insurer’s payment of additional benefits after post-suit receipt of determination of emergency medical condition did not constitute confession of judgment entitling provider to attorney’s fees award
FLORIDA SPINE & JOINT INSTITUTE, LLC, a/a/o Walter Koos, Plaintiff(s), v. UNITED SERVICES AUTOMOBILE ASSOC., Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE14-002273, Division 54. March 11, 2015. Stephen J. Zaccor, Judge. Joseph R. Dawson, Law Office of Joseph R. Dawson, P.A., Fort Lauderdale, for Plaintiff. Scott W. Dutton, Dutton Law Group, P.A., Tampa, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION FORSUMMARY JUDGMENT AND GRANTINGDEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on February 18th, 2015, on Plaintiff’s and Defendant’s Motions for Summary Judgment and the Court having heard argument of counsel, having reviewed the court file, and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law:
STATEMENT OF FACTS
The action before the court involves a claim for personal injury protection insurance benefits filed by the Plaintiff, Florida Spine & Joint Institute, LLC, (hereinafter “Plaintiff”) as assignee of Walter Koos (hereinafter “Claimant”) against the Defendant, United Services Automobile Association (hereinafter “Defendant”) arising out of a motor-vehicle accident that allegedly occurred on May 28th, 2013. At all relevant times the Claimant was covered under a contract of insurance issued by the Defendant that provided Personal Injury Protection benefits in accordance with Florida’s Motor-Vehicle No-Fault Law for the six month policy period beginning on February 26th, 2013.
As of August 19th, 2013 the Defendant had paid $2,500 to various providers pursuant to the policy. No medical provider, as of yet, had determined the Claimant suffered an emergency medical condition. On September 12th, 2013 the Plaintiff treated the Claimant and subsequently billed the Defendant. The Defendant did not pay Plaintiff’s bill as no emergency medical condition had been established, but they did issue an explanation of Benefits which notified the Plaintiff that the $2,500 policy limit had been paid. Furthermore, Defendant asked the Plaintiff to provide information with respect to any emergency medical condition the claimant may have suffered.1 The Plaintiff offered nothing to establish an emergency medical condition.
The Plaintiff filed a pre-suit Demand Letter on December 13th, 2013. On January 30th, 2014 the Plaintiff filed its complaint even though no money was due and owing. On March 10th, 2014 the Defendant received a declaration that the Claimant suffered from an emergency medical condition. Eight days later, on March 18th, 2014, the Defendant issued payment to the Plaintiff.
ANALYSIS
Both parties agree there are no factual disputes. “When the material facts are undisputed, they form a question of law which the trial court is empowered to decide on a motion for summary judgment.” Richmond v. Florida Power & Light Co., 58 So.2d 687 (Fla.1952).
Plaintiff seeks Summary Judgment claiming the Defendant’s “post-suit payment” amounts to a confession of judgment. “Florida courts have repeatedly held that when an insurer pays additional policy proceeds after suit is filed, “ “it has, in effect, declined to defend its position in the pending suit. Thus, the payment of the claim is, indeed, the functional equivalent of a confession of judgment or a verdict in favor of the insured.” ” Clifton v. United Cas. Ins. Co. of Am., 31 So. 3d 826, 829 (Fla. 2nd DCA 2010) [35 Fla. L. Weekly D364e] citing, Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217, 218 (Fla.1983). The confession of judgment rule, however, is not absolute. Clifton at 829. Improper withholding of payment by the insurer is a necessary element of the rule. Id; see also, Omega Ins. Co. v. Johnson, 39 Fla. L. Weekly D1911a (Fla. 5th DCA 2014). Therefore, the question before the court is:
WHETHER THE DEFENDANT IMPROPERLY REFUSED PAYMENT TO THE PLAINTIFF AFTER THE $2,500 LIMIT WAS REACHED DUE TO PAYMENTS TO OTHER PROVIDERS, BUT PRIOR TO THE ESTABLISHMENT OF AN EMERGENCY MEDICAL CONDITION.
Section 627.736, Florida Statutes (2013) provides for reimbursement of up to $10,000 of medical expenses related to a motor vehicle accident if the injured party suffered an emergency medical condition. If however, no emergency medical condition is established, then reimbursement is capped at $2,500. §§ 627.736(1)(a)(3-4) Fla. Stat. (2013).
In the case before the court there is no dispute the Claimant was covered under a policy issued by the Defendant and he suffered injuries resulting from the use of a motor vehicle. The Claimant was injured on May 28th, 2013 and subsequently received treatment form various providers. None of the medical providers indicated the claimant had suffered from an emergency medical condition. The Defendant reimbursed six different providers and reached the $2,500 limit by August 19th, 2013.
The Claimant’s first contact with the Plaintiff was on September 12th, 2013. When the Plaintiff submitted its claim to the Defendant, the Defendant advised the $2,500 policy limit had been reached and requested Plaintiff to provide information with respect to any emergency medical condition the claimant may have suffered.2 The Plaintiff offered nothing to establish an emergency medical condition. The defendant made no further payments.
Plaintiff argues § 627.736, Florida Statutes (2013) creates $10,000 in coverage unless and until an emergency medical condition is disproven. The Defendant argues the contrary. Those sections provide:
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.
§§ 627.736(1)(a)(3)&(4) Fla. Stat. (2013).
“When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Rollins v. Pizzarelli, 761 So. 2d 294, 297 (Fla. 2000) [24 Fla. L. Weekly S69a], quoting Modder v. American Nat’l Life Ins. Co., 688 So.2d 330, 333 (Fla.1997) [22 Fla. L. Weekly S87a]. Furthermore, “significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage.” Larimore v. State, 2 So. 3d 101, 106 (Fla. 2008) [33 Fla. L. Weekly S948a], as revised on denial of reh’g (Jan. 29, 2009). As applied here, one cannot read sub-paragraph (1)(a)(3) without giving “significance and effect” to sub-paragraph (1)(a)(4). In doing so, it is clear that coverage exceeds $2,500 and is capped at $10,000 ifa qualified person determines the existence of an emergency medical condition. Ergo, coverage is capped at $2,500 in the absence of a qualified person’s determination that an emergency medical condition exists. See, multiple jurisdictions holding same.3
As no emergency medical condition had been established, and The Defendant had already paid $2,500 under the policy, it did not improperly withhold payment. No additional monies became due and owing until March 10th, 2013 and the Defendant paid within the requisite 30 days. Therefore, the confession of judgment rule does not apply and the Plaintiff’s Motion for Summary Judgment must fail.
By the same analysis, it follows that the Defendant’s Motion for Final Summary Judgment should prevail. The Defendant paid all monies due and owing once they became due and owing. The Plaintiff’s pre-suit demand letter was premature for the reasons detailed above. When proof of the emergency medical condition was submitted to the Defendant, approximately nine months after the date of the accident, they paid within eight days and exhausted benefits by March 17, 2014. In short, the Defendant did everything it was required to do. Therefore, the claim at issue was timely paid by the Defendant and summary judgment should be granted.
Therefore, it is:
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Final Summary Judgment is hereby DENIED and the Defendant’s Motion for Summary Judgment is hereby GRANTED.
__________________
1§ 627.736(6)(b) Fla. Stat. 2013.
2See Footnote 1.
3Enivert 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); Robbins v. Garrison Prop. & Cas. Ins. Co., Case No. 13-81259 (S.D. Fla. July 18, 2014) (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]; Pembroke Pines MRI, Inc. (Weinkle) v. USAA Cas. Ins. Co., Case No. COCE 14-000542(52) (Fla. Broward Cty. Ct. Oct. 20, 2014) [22 Fla. L. Weekly Supp. 448a]; Orthopedic Specialist LLP v. USAA Cas. Ins. Co., Case No.: 502013 SC 13901 (Fla. Palm Beach Cty. Ct. June 30, 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 a great public importance whether a certification by a statutorily authorized person is necessary to make benefits above $2,500.00 available).
* * *
