23 Fla. L. Weekly Supp. 341b
Online Reference: FLWSUPP 2304KOLLInsurance — Personal injury protection — Dismissal — Where medical provider filed and then dismissed first lawsuit against PIP insurer, and thereafter provider filed second lawsuit against insurer for different dates of service, some of which occurred prior to dismissal of first suit, claims for services rendered on or before date of dismissal of first lawsuit are dismissed — Motion to dismiss is denied as to services rendered after dismissal of first lawsuit
ACTIVE CHIROPRACTIC WELLNESS CENTER a/a/o CARLA KOLLER, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2014-SC-2885, Division P. August 3, 2015. Eric Roberson, Judge. Counsel: Rinaman & Associates, P.A., Jacksonville, for Defendant.
ORDER GRANTING, IN PART,DEFENDANT’S MOTION TO DISMISS
The Court heard Defendant’s Motion to Dismiss Pursuant to F.S. 627.736(15) and Res Judicata, or in the Alternative, Motion for Final Summary Judgment (the “Motion to Dismiss”). Having heard the argument and authorities of counsel and being otherwise fully informed in the premises, the Court finds as follows.
1. This lawsuit relates to Personal Injury Protection (“PIP”) benefits for services rendered by Plaintiff on behalf of its assignor.
2. This lawsuit, however, is not the first action by this Plaintiff seeking recovery of PIP benefits related to an accident that occurred on December 12, 2012. In Case No. 2013-SC-2693 (the “First Lawsuit”), Plaintiff sought recovery for services rendered on April 9, 2013.
3. A timeline of relevant dates is helpful to understand the issues presented in the Motion to Dismiss:
| Date | Description |
| December 12, 2012 | Carla Koller involved in accident |
| May 8, 2013 | Plaintiff, through counsel, sends a demand letter to Defendant for Date of Service (“DOS”) April 9, 2013 |
| June 6, 2013 | Defendant responds to demand letter by declaring that Ms. Koller’s benefits were discontinued based on an IME |
| June 12, 2013 | Plaintiff filed the First Lawsuit |
| June 18, 2013 | Plaintiff, through counsel, sends a demand letter to Defendant for DOS May 20, 2013 |
| February 26, 2014 | Plaintiff dismisses the First Lawsuit with prejudice |
| April 29, 2014 | Plaintiff, through counsel, sends a demand letter to Defendant for DOS May 20, 2013 through May 25, 2014 |
| June 3, 2014 | Plaintiff files this lawsuit seeking recovery for services rendered May 20, 2013 through May 25, 2014 |
4. Defendant moves to dismiss this lawsuit based upon Florida Statute Section 627.736(15) which states:
(15) ALL CLAIMS BROUGHT IN A SINGLE ACTION. In any civil action to recover personal injury protection benefits brought by a claimant pursuant to this section against an insurer, all claims related to the same health care provider for the same injured person shall be brought in one action, unless good cause is shown why such claims should be brought separately. If the court determines that a civil action is filed for a claim that should have been brought in a prior civil action, the court may not award attorney’s fees to the claimant.
5. At the outset, Plaintiff concedes that any claim related to the June 18, 2013 demand letter is properly dismissed.
6. As to the claim for benefits arising from services rendered between May 20, 2013 and May 25, 2014, the Court finds that Plaintiff had notice that Defendant did not — and would not — pay benefits based on the previous IME cutoff. Plaintiff was on notice well before the First Lawsuit was resolved.
7. Plaintiff chose not to amend the First Lawsuit and, instead, fully resolved that case by filing a dismissal with prejudice. Only later did Plaintiff begin the process of demanding payments for services largely performed before the First Lawsuit was dismissed.
8. Accordingly, Defendant’s Motion to Dismiss is GRANTED IN PART and all claims in this lawsuit relating to services performed on or before February 26, 2014 are hereby dismissed.
9. Defendant’s Motion to Dismiss as to services performed after February 26, 2014 is DENIED.
10. However, the Court finds that the claims for services in this lawsuit, including those services rendered after February 26, 2014, should have been included as part of the First Lawsuit. As such, the Court finds that an award of attorney’s fees would not be appropriate in the event that Plaintiff is ultimately successful in this action.
