22 Fla. L. Weekly Supp. 1169a
Online Reference: FLWSUPP 2210ANDEInsurance — Personal injury protection — Attorney’s fees — Confession of judgment — Payment of benefits in excess of $2,500 emergency medical condition limitation upon receipt of determination of emergency medical condition after suit was filed constitutes confession of judgment entitling MRI provider to award of attorney’s fees and costs — No merit to argument that statute requires that emergency medical condition determination be submitted as part of duty to provide insurer with notice of covered loss — Explanation of benefits denying coverage after exhaustion of $2,500 in benefits and suggesting that provider supply additional information regarding emergency medical condition to support additional reimbursement decisions did not constitute valid request for additional information under section 627.736(6)(b) and did not toll time for payment of bill or impose requirement for MRI provider to obtain emergency medical condition determination from another provider before being entitled to reimbursement
HEALTH DIAGNOSTICS OF FORT LAUDERDALE, LLC D/B/A STAND UP MRI OF FT. LAUDERDALE, (a/a/o Martha J. Anderson), Plaintiff(s), vs. USAA CASUALTY INSURANCE COMPANY, Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 14-5989 SP 25 (01). April 13, 2015. Gloria Gonzalez-Meyer, Judge. Counsel: Martin I. Berger, Berger & Hicks, P.A., Miami, for Plaintiff. Scott W. Dutton, Dutton Law Group, P.A., Tampa, for Defendant.
REVERSED. FLWSUPP 2705MJAN
Order on REMAND at FLWSUPP 2507MAND
ORDER GRANTING PLAINTIFF’S MOTIONFOR ATTORNEY’S FEES AND COSTS ANDDENYING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT
This cause came before the Court on March 11, 2015, on Plaintiff’s Motion for Attorney’s Fees and Costs and Defendant’s Motion for Summary Judgment. The Court, having reviewed the motion and entire Court file, heard argument of counsel, reviewed relevant legal authority, and been otherwise advised in the premises, makes the following findings of fact and conclusions of law:Findings of Facts
The underlying facts are not in dispute. Martha J. Anderson was involved in a motor vehicle collision on May 22, 2013 while in a vehicle insured by Defendant, USAA Casualty Insurance Company. The policy in effect provided for personal injury protection (“PIP”) coverage under the Florida No Fault Statute. Ms. Anderson received an MRI of the left knee from Plaintiff, Health Diagnostics of Fort Lauderdale, LLC d/b/a Stand Up MRI of Ft. Lauderdale. Defendant initially denied reimbursement of Plaintiff’s bill in its entirety, having already paid $2,500.00 in PIP benefits based on an alleged lack of emergency medical condition (“EMC”) under Florida Statute §627.736(1)(a)3 & 4. Defendant was in possession of all relevant medical records at the time of its denial. Subsequent to the denial, Plaintiff sent a demand letter pursuant to Florida Statute §627.736(10). Defendant once again denied payment of Plaintiff’s bill. Plaintiff then initiated this lawsuit for the purpose of recovering the PIP benefits claimed to be due. On November 13, 2014, during the litigation, Plaintiff, an MRI provider, filed the Affidavit of Kevin J. Kessler, M.D., the treating and prescribing physician, in opposition to Defendant’s Motion for Summary Judgment. Dr. Kessler opined that the subject patient has suffered an emergency medical condition. Following receipt of the Affidavit, on November 19, 2014, Defendant issued payment to Plaintiff for the full amount of benefits owed for the subject service. Plaintiff alleges that this payment constitutes a confession of judgment, which entitles Plaintiff to its attorney’s fees and costs. Defendant alleges that Plaintiff’s lawsuit was premature and seeks summary judgment because it contends that submission of an EMC determination is a condition precedent to receiving $10,000.00 in coverage, and that only after submission of the EMC determination was Defendant obligated to reimburse Plaintiff for its services. Defendant further contends that language present in its Explanation of Review (“EOR”) constitutes a §627.736(6)(b) request for information, that tolled the time for Defendant to issue payment for the subject services.Analysis and Conclusions of Law
The issues for the Court’s determination are as follows: 1) whether Florida’s No Fault Statute establishes a condition precedent for a provider seeking PIP benefits to submit an EMC determination to an insurer prior to the insurer becoming responsible for up to $10,000.00 in benefits; 2) whether Defendant’s EOR constituted a valid §627.736(6)(b) request, and; 3) whether Defendant’s payment of the subject service during the pendency of this litigation constituted a confession of judgment entitling Plaintiff to its attorney’s fees and costs under Florida Statue §627.428. The Court finds that there is no provision in the No Fault Act that makes submitting an EMC determination a condition precedent recovering up to $10,000.00 in benefits, Defendant’s EOR did not constitute a valid (6)(b) request, and that Defendant payment of the benefits at issue during litigation was a confession of judgment entitling Plaintiff its attorney’s fees and costs.I. Submissions of an EMC Determination to anInsurer is not a Condition Precedent
The No Fault Statute does not establish a condition precedent of submitting an EMC determination to an insurer before that insurer is responsible for $10,000.00 in benefits. Nor is there an automatic $2,500.00 cap on PIP benefits unless and until an EMC determination is submitted to an insurer. Florida Statute §627.736(1)(a)3. – 4. states the following,
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
Fla. Stat. §627.736(1)(a)3. – 4. (2013).
The plain language of the PIP statute clearly indicates that an insured is only limited to reimbursement up to $2,500.00, if a provider, which is a physician that treated the patient, determines that the patient did NOT have an emergency medical condition. Nowhere does the statute provide that an insurer can on its own limit benefits to $2,500.00 or that if no determination is made coverage defaults to $2,500.00. In fact, an insurer is only entitled to limit benefits to $2,500.00 when a provider, i.e. one of the patients treating physicians licensed under one of the above referenced chapters, has affirmatively declared that there was no emergency medical condition. Most importantly, however, the statute is silent as to any requirements regarding when an EMC determination must be made, how it needs to be made, and if it must be submitted to an insurer at all. To follow Defendant’s argument would be tantamount to rewriting the statute and imposing requirements on insureds where none exist. See AFO Imaging, Inc. a/a/o Santonio Simmons v. Enterprise Leasing Company of Florida, LLC, Case No.: 13-CC-029576-U (Hillsborough Cty. Ct. Jan. 16, 2015) [22 Fla. L. Weekly Supp. 838a] (citing Capeletti Bros. Inc. v. Dep’t of Transp., 499 So. 2d 855, 857 (Fla. 1st DCA 1986); Lamont v. State, 597 So. 2d 823,831 (Fla. 3d DCA 1992); Jordan v. State, 801 So. 2d 1032, 1034 (Fla. 5th DCA 2001) [27 Fla. L. Weekly D15a]). In the case at bar, no provider opined that the injured person did not have an emergency medical condition. Furthermore, nowhere in Florida Statute §627.736(1)(a)(3) – (4) or §627.732(16) is there a requirement that a provider state any specific language in its reports or complete any specific forms to show an emergency medical condition. See Lorraine v. Enterprise Leasing Co. of Orlando, LLC, Case. No. 13-CC-16688-O (Orange Cty. Ct. Dec. 8, 2014) [22 Fla. L. Weekly Supp. 943a] (holding that there are no “magic words” that a provider must submit to an insurer and therefore it cannot be decided that there was no emergency medical condition simply because a doctor does not write the words “emergency medical condition” in succession). Therefore, it was improper for Defendant to limit benefits to $2,500.00 in this case.
Defendant then argues that subsection (4)(b) of the No Fault Statute creates the requirement to submit an EMC determination as part of an insured’s duty to provide an insurer with notice of a covered loss before a bill is deemed overdue. The Court finds no merit to this argument. Section 627.736(4)(b) states, in relevant part, that
[p]ersonal injury protection insurance benefits paid pursuant to this section are overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same
Fla. Stat. §627.736(4)(b) (2013).
Section 627.736(5)(d) sets forth the requirements for providing notice of a loss:
All statements and bills for medical services rendered by a physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a properly completed Centers for Medicare and Medicaid Services (CMS) 1500 form, UB 92 forms, or any other standard form approved by the office or adopted by the commission for purposes of this paragraph. All billings for such services rendered by providers must, to the extent applicable, follow the Physicians’ Current Procedural Terminology (CPT) or Healthcare Correct Procedural Coding System (HCPCS), or ICD-9 in effect for the year in which services are rendered and comply with the CMS 1500 form instructions, the American Medical Association CPT Editorial Panel, and the HCPCS. All providers, other than hospitals, must include on the applicable claim form the professional license number of the provider in the line or space provided for “Signature of Physician or Supplier, Including Degrees or Credentials.” In determining compliance with applicable CPT and HCPCS coding, guidance shall be provided by the Physicians’ Current Procedural Terminology (CPT) or the Healthcare Correct Procedural Coding System (HCPCS) in effect for the year in which services were rendered, the Office of the Inspector General, Physicians Compliance Guidelines, and other authoritative treatises designated by rule by the Agency for Health Care Administration. A statement of medical services may not include charges for medical services of a person or entity that performed such services without possessing the valid licenses required to perform such services. For purposes of paragraph (4)(b), an insurer is not considered to have been furnished with notice of the amount of covered loss or medical bills due unless the statements or bills comply with this paragraph and are properly completed in their entirety as to all material provisions, with all relevant information being provided therein.
Fla. Stat. §627.736(5)(d) (2013). The requirement of providing an insurer with written notice of a covered loss is satisfied by submitting a substantially completed CMS 1500 claim form. See Geico Gen. Ins. Co. v. Tarpon Total Health Care, 86 So. 3d 585 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1027a] (holding that the insurer is put on notice of a covered claim by the submission of a substantially complete claim form); USAA Cas. Ins. Co. v. Pembroke Pines MRI, Inc., 31 So. 3d 234, 237 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D613b] (holding that if a claim form is properly completed then an insurer received notice of a covered loss); United Auto. Ins. Co. v. Prof’l Medical Group, Inc., 26 So. 3d 21, 24 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2500a] (holding that a bill or statement need only be “substantially complete” and “substantially accurate” as to relevant information and material provisions in order to provide notice to an insurer). Nowhere is section 627.736(4)(b) or (5)(d) does it mention anything about submitting a determination of an emergency medical condition. In fact, the requirement to submit an EMC determination to an insurer does not appear anywhere in the statute. Therefore, “it is clear that an emergency medical condition determination is not required to be submitted along with the written notice of the fact of a covered loss,” and Defendant’s argument that such a requirement exists fails as a matter of law. See AFO Imaging, supra. As such, Defendant was not permitted to automatically limit the insured’s benefits to $2,500.00 merely because an EMC determination was not submitted during the claims process. See AFO Imaging, supra. No such burden exists for an insured, and no such burden exists for the Plaintiff in this action. Defendant was provided with notice of the covered loss through its receipt of Plaintiff’s properly completed CMS 1500 form.II. Defendant did not make a Proper §627.736(6)(b) Request
As discussed above, the No Fault Statute does not impose any requirement on an insured or medical provider to submit an EMC determination to an insurer in order to put the insurer on notice of a covered loss or to receive up to the full $10,000.00 in coverage. However, Defendant argues that Plaintiff in this case had such a requirement imposed upon it based on an alleged request made by Defendant pursuant to §627.736(6)(b).
Florida Statute §627.736(6)(b) prescribes a very narrow range of information that may be requested by an insurer from a provider prior to the filing of a lawsuit. Pursuant to Florida Statute §627.736(6)(b) an insurer is only entitled to receive pre suit:
a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained and identifying which portion of the expenses for such treatment or services was incurred as a result of such bodily injury
Fla. Stat. §627.736(6)(b)(2013). Additionally, a provider may also be required to produce and permit the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment. Fla. Stat. §627.736(6)(b)(2013). Defendant did not make a request pursuant to the above section in this matter. The only request to which Defendant refers is contained in the Explanation of Review sent by Defendant to Plaintiff in response to Plaintiff’s bill. Defendant’s alleged request is placed on the second page of the EOR in small font under the heading “Explanation for the Reviewed Amount,” and states “Per F.S.A. §627.736(1)(a)(4), $2,500.00 has been reimbursed. In order to make any additional reimbursement decisions, please provider the determination of the patient’s emergency medical condition by a provider authorized in 627.736(1)(a)3 & 4.” This mere suggestion to supply additional information that, as discussed above, that Plaintiff is not required to create under any provision of §627.736 is insufficient to constitute a (6)(b) request. See Dib Dabul v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weely Supp. 28b (Fla. 11th Cir. App. 2013); Mercury Ins. Co. of Florida v. Med Manage Group, Inc. a/a/o Michael Bergey, 17 Fla. L. Weekly Supp. 617b (Fla. 15th Cir. App. 2010); Russell E. Turner, D.C., PLLC a/a/o Cresha Forgue v. State Farm Fire and Cas. Co., 17 Fla. L. Weekly Supp. 382b (Miami-Dade Cty. Ct. Mar. 2, 2010); and Fidel S. Goldson, D.C., P.A.a/a/o Tanya White v. State Farm Mut. Auto. Ins. Co., 17 Fla. L. Weekly Supp. 394a (Broward Cty. Ct. Mar. 8, 2010). In this case, Plaintiff was only the MRI provider. Under Defendant’s argument, an MRI provider would never be able satisfy Defendant’s request and have its bill even considered by an insurer. Plaintiff was not in possession of the treating physician’s records, nor is it required to obtain said records or an EMC determination from a separate entity in order to have its claim considered by Defendant. Defendant, however, was in possession of not only Plaintiff’s bill and MRI report, but also the treating physician’s medical records. Defendant was in possession of all information necessary to evaluate the subject claim and make a reimbursement decision. Simply because the treating physician’s records did not contain the phrase “emergency medical condition” does not mean Defendant could not determine that such a condition existed. As discussed above, there are no statutorily required magic words to create an EMC. See Lorriane, supra. Additionally, Defendant did not delay making a reimbursement decision pending receipt of further information as would be the case if a proper §627.736(6)(b) request was made, but rather affirmatively decided to limit coverage to $2,500.00 and deny Plaintiff’s bill. At that point, once thirty days from receipt of Plaintiff’s bill has elapsed, Plaintiff’s bill was overdue and ripe for a demand letter and subsequent lawsuit. The Court finds that Defendant’s Explanation of Review sent to Plaintiff did not constitute a valid §627.736(6)(b) request, and consequently, did not toll the time for Defendant to issue payment for Plaintiff’s bill, nor impose the requirement for Plaintiff to obtain an EMC determination from another provider before being entitled to reimbursement.III. Defendant’s Payment of Disputed Benefits whilein Suit was a Confession of Judgment
Following the above analysis, because there was no requirement to submit an EMC determination to Defendant, nor was the reimbursement of Plaintiff’s bill tolled under §627.736(6)(b), Defendant’s in suit payment of the disputed benefits constitutes a confession of judgment. The instant lawsuit was in no way premature as Defendant suggests. Plaintiff complied with all statutory requirements for submitting its claim and its demand letter. There was no determination made by any provider indicating that the patient had not suffered an EMC, thereby limiting coverage to $2,500.00. Defendant chose to limit coverage to $2,500.00 at its own risk as nothing in §627.736 prohibits an emergency medical condition determination from being communicated for the first time during a lawsuit over PIP benefits. See AFO Imaging, supra. In this case, Plaintiff was required to file a lawsuit in order to obtain payment of its bill. As part of the prosecution of its case Plaintiff filed the Affidavit of Kevin J. Kessler, M.D. Defendant’s payment was directly related to actions taken by Plaintiff’s in this litigation. By issuing payment of the disputed benefits following receipt of the above affidavit, Defendant abandoned its defense and declined to defend its position in this suit. See Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217 (Fla.1983). See also Ivey v. Allstate Ins. Co., 774 So. 2d 679, 684 (Fla. 2000) [25 Fla. L. Weekly S1103a] (holding that an insurer’s payment after suit was filed operated as a confession of judgment entitling the insured to attorney’s fees); AFO Imaging, supra. Therefore, because the filing of this lawsuit was both necessary and directly related to obtaining the disputed PIP benefits, Defendant’s payment was a clear confession of judgment. Based on Defendant’s confession of judgment, the Court finds that Plaintiff is the prevailing party entitled to an award of attorney’s fees pursuant to Florida Statute §627.428, Florida Statute §627.736(8), and costs pursuant to Florida Statute §92.231 and Florida Statute §57.041, the amount of which is to be determined by this Honorable Court at a later time.
Accordingly, it is ORDERED and ADJUDGED, that Defendant’s Motion for Summary Judgment is DENIED, and Plaintiff’s Motion for Attorney’s Fees and Costs is GRANTED. The Court reserves jurisdiction to determine the amount of Plaintiff’s attorney’s fees and costs.
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