22 Fla. L. Weekly Supp. 1028a
Online Reference: FLWSUPP 2209STATInsurance — Personal injury protection — Attorney’s fees — Medical provider’s motion to tax attorney’s fees and costs for discovery requests is denied — Insurer’s requests for information regarding ownership of provider’s clinics were timely and permissible inquiries into lawfulness of services rendered irrespective of whether benefits had already been paid or exhausted
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, v. FIRST CHOICE CARE CHIROPRACTIC AND REHABILITATION CENTER, INC.; INTERNATIONAL CHIROPRACTIC AND REHAB, INC.; and DIANE COPELAND, Defendant. Circuit Court, 10th Judicial Circuit in and for Polk County. Case No. 2014-CA-000285. February 17, 2015. Mark F. Carpanini, Judge. Counsel: Bart R. Valdes and Kendra G. McCan, de Beaubien, Knight, Simmons, Mantzaris & Neal, LLP, Tampa, for Plaintiff. Crystal Eiffert, Eiffert and Associates, Orlando, for Defendant.
ORDER DENYING DEFENDANTS’ MOTION TO DETERMINE ENTITLEMENT TO ATTORNEYS FEESAND COSTS AND MOTION TO TAX FEES AND COSTS
THIS CAUSE having come before this Court on the Defendants’ Motion to Determine Entitlement to Attorneys Fees and Costs and Motion to Tax Fees and Costs, at an evidentiary hearing at 9:30 a.m., on December 9, 2014, with Crystal Eiffert, Esq., present as counsel for the Defendants, and Bart R. Valdes, Esq., and Kendra G. McCan, Esq., present as counsel for the Plaintiff, and the Court having reviewed the record, having considered the evidence and testimony submitted at the hearing, having heard the arguments of counsel, and being fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED as follows:
1. The Defendants’ Motion to Determine Entitlement to Attorneys Fees and Costs and Motion to Tax Fees and Costs is DENIED.
2. The Defendants moved for attorneys’ fees and costs pursuant to, in part, § 627.736(6)(c), Florida Statutes (“§ 627.736(6)(c)”), under which the Court may exercise discretion to award fees and costs “as justice requires.” This Court already denied the Defendants’ request for attorneys’ fees on other grounds by virtue of its Order dated November 7, 2014.
3. The Plaintiff’s statutory requests for information, submitted to the Defendants pursuant to § 627.736(6)(b), Florida Statutes (the “(6)(b) Requests”), were proper.
4. All of the Plaintiff’s (6)(b) Requests, which turned on whether the treatment and services provided by the Defendant clinics were lawfully rendered, and which included requests for information regarding the ownership of the Defendant clinics, were within the realm of permissible discovery under § 627.736(6)(b), Florida Statutes (“§ 627.736(6)(b)”).
5. The language contained in Footnote 3 of the opinion in Tampa Chiropractic Center Inc. v. State Farm Mut. Auto. Ins. Co., Case No. 5D13-854, in the District Court of Appeal of Florida, Fifth District (July 11, 2014), which imposes a very narrow and limited scope of permissible discovery under § 627.736(6)(b), is dicta and is not binding upon this Court. Kaminester v. State Farm Mut. Auto. Ins. Co., 775 So. 2d 981 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2705a], and its progeny, remain the controlling authority on the issue of permissible discovery regarding clinic ownership under § 627.736(6), Florida Statutes.
6. Pursuant to Kaminester, and its progeny, the Plaintiff had good cause, a valid factual basis, and a valid legal basis to file its Verified Petition/Motion for Discovery Pursuant to Section 627.736(6)(c), Florida Statutes (the “Petition for Discovery”). In its Petition for Discovery, the Plaintiff presented a sufficient and detailed explanation of the facts it relied upon to support its good faith belief that the Defendants were, or are, engaged in an unlawful clinic ownership scheme. The Plaintiff corroborated its factual bases by verifying the Petition for Discovery with the sworn statement of a claims representative. Kaminester 775 So. 2d at 986. The Plaintiff also established good cause for filing its Petition for Discovery based upon the Defendants’ failure to provide complete responses to the Plaintiff’s (6)(b) Requests. Id. (An “outright refusal to supply [information in response to a statutory request for information under § 627.736(6)(b),] establishes the necessary good cause for a court to order discovery under section 627.736(6)(c).”).
7. Also, pursuant to Kaminester, the Plaintiff’s (6)(b) Requests and subsequent Petition for Discovery were timely and permissible regardless of whether PIP benefits for the Plaintiff’s insureds who treated at the Defendant clinics had already been paid or exhausted. Kaminester contemplates and specifically allows post-benefit-exhaustion requests for the purpose of determining whether or not there has been an overpayment, or wrongful payment, of benefits to a provider. This finding in Kaminester is wholly consistent with § 627.736(4)(b), Florida Statutes, which states in pertinent part as follows:
(b) Personal 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. However:
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6. 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. (Emphasis added.)
As such, an insurer, such as the Plaintiff, can still file and pursue a petition for discovery under § 627.736(6)(c), even if it has already paid the provider for the services at issue, or even if the benefits are exhausted.
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