23 Fla. L. Weekly Supp. 372a
Online Reference: FLWSUPP 2304HENRInsurance — Personal injury protection — Coverage — Emergency medical condition — Under provisions of 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 where qualified provider had not determined that insured suffered emergency medical condition
ALTERNATIVE MEDICAL CENTER, A/A/O WILNER HENRILUS, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. CONO-15-000632 (71). July 28, 2015. Honorable Louis H. Schiff, Judge. Counsel: Rory Biggins, Florida PIP Law Firm, Boca Raton, for Plaintiff. Erick D. Martin, Law Offices of Neil V. Singh, Fort Lauderdale, for Defendant
ORDER GRANTING DEFENDANT’SMOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on July 22, 2015, pursuant to Defendant’s Motion for Summary Judgment, and the Court having reviewed the file, affidavit, pleadings, considered the arguments of Counsel and Memorandum of Law submitted by Defendant, and being otherwise fully advised in this matter, does hereby make the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. On January 29, 2015, Plaintiff filed suit against Progressive American Insurance Company for Personal Injury Protection (PIP) benefits after Progressive limited Personal Injury PIP coverage under its subject policy of insurance to $2,500 because there was no Emergency Medical Condition (EMC) designated during Wilner Henrilus’s course of treatment for the alleged injuries same allegedly sustained in the February 8, 2013 automobile accident. Plaintiff’s Complaint never alleges that Wilner Henrilus suffered an emergency medical condition from the alleged subject accident.
2. It is Defendant’s contention that Defendant properly limited its PIP coverage to $2,500.00 in this case due to the absence of any proof that Wilner Henrilus suffered from an EMC from the alleged subject accident.
3. At the time of the accident, Wilner Henrilus was insured under a contract of insurance issued by Defendant that provided PIP benefits in accordance with the Florida Motor Vehicle No-Fault Law, as amended in 2012 (the “policy”).
4. On April 6, 2015 Defendant filed the following items: 1) Defendant’s Motion for Summary Judgment with Memorandum of Law Regarding Emergency Medical Condition; and 2) the Affidavit of Adjuster Antoinette Whittingham in Support of Defendant’s Motion for Final Summary Judgment on Non-Emergency Medical Condition. The affidavit of Antoinette Whittingham attached true, correct and certified copies of the Defendant’s declarations page, policy of insurance, and applicable endorsements, as well as a true and correct copy of Defendant’s PIP Medical Detail List, which is commonly referred to as a PIP log. Antoinette Whittingham testified in her affidavit that the medical records failed to show, and Plaintiff failed to provide, a determination that Wilner Henrilus suffered from an emergency medical condition, and that Defendant paid Wilner Henrilus the PIP coverage limit of $2,500.00.
5. Defendant asserts that the language of the policy and Florida Vehicle No-Fault Law limits reimbursement of PIP benefits to Wilner Henrilus to $2,500.00, as Defendant did not receive any proof that Wilner Henrilus suffered an emergency medical condition from the alleged subject accident. Further, Defendant asserts that Plaintiff was not entitled to any further benefits as Defendant tendered the $2,500.00 policy limits prior to the initiation of the lawsuit.
6. Defendant’s policy at the time of the alleged subject accident contained Endorsement Form A085 FL (05/12), attached as part of Exhibit “B” to Antoinette Whittingham’s affidavit, and which specifically states the following:
The maximum reimbursement for services and care is limited to $2,500, unless it has been determined that the injured person had an emergency medical condition. That determination can affirmatively be made only by a physician or physician assistant licensed under chapter 458 or 459, a dentist licensed under chapter 466, or an advanced registered nurse practitioner licensed under chapter 464, and further can be made only if no physician or physician assistant licensed under chapter 458 or 459, no chiropractic physician licensed under chapter 460, no dentist licensed under chapter 466, and no advanced registered nurse practitioner licensed under chapter 464 has determined that the injured person did not have an emergency medical condition. (Emphasis in original).
7. Endorsement Form A085 FL (05/12) and Florida Statute § 627.732(16) both specifically define “emergency medical condition” in the following manner:
a medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following: (a) serious jeopardy to patient health; (b) serious impairment to bodily functions; or (c) serious dysfunction of any bodily organ or part.
8. Progressive’s policy of insurance clearly allows Defendant to limit coverage for PIP benefits to $2,500.00 to an injured party when there is no evidence that the injured party suffered from an emergency medical condition.
9. Following the accident, the Wilner Henrilus sought treatment from various medical providers for injuries allegedly sustained as a result of the accident and the Defendant received bills for reimbursement. Among the charges received were bills from the Plaintiff for treatment rendered from March 14, 2013 to August 21, 2013. The Defendant reviewed and adjusted the bills received in accordance with the terms of the policy and the applicable provision of the Florida Motor Vehicle No-Fault Law. Defendant limited reimbursement to $2,500.00 because Defendant received no proof that a physician licensed under chapter 458 or 459, a dentist licensed under chapter 466, a physician assistant licensed under chapter 458 or 459, or an advanced registered nurse practitioner licensed under chapter 464 (“qualified provider”), determined that the claimant had an emergency medical condition as statutorily required to authorize additional reimbursement. That fact is not disputed.
10. Plaintiff did not file any affidavits, medical records, or any evidence in opposition to Defendant’ Motion for Summary Judgment. Plaintiff did not identify any summary judgment evidence on which it relied as required by Fla.R.Civ.P. 1.510. Plaintiff also did not file a legal memorandum of any other document for this Court to consider when ruling on Defendant’s Motion for Summary Judgment. Plaintiff argues that because Wilner Henrilus’s first date of treatment for the alleged subject accident was with Dr. Romulus, M.D., that Plaintiff has shown the existence of an emergency medical condition. The Court finds that Plaintiff did not present an emergency medical declaration by Dr. Romulus, M.D. nor an affidavit by Dr. Romulus, M.D. testifying that Wilner Henrilus suffered from an emergency medical condition. Plaintiff further argued that it was Defendant’s burden to find if a qualified medical professional rendered an emergency medical condition declaration for Wilner Henrilus, and that Defendant should have done a Florida Statute § 627.7366(b) request to Plaintiff for such a declaration.
11. The Court record contains no evidence whatsoever that Wilner Henrilus suffered from an emergency medical condition as a result of the alleged subject accident.
CONCLUSIONS OF LAW
12. Florida Statute § 627.736(1)(a)(3) and Florida Statute § 627.736(1)(a)(4) state 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 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.
13. A review of the statutory language in light of the established tenets of statutory construction requires this Court to harmonize the various provisions of the statute. “A basic tenet of statutory interpretation is that a ‘statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts.’ ” Jones v. ETS of New Orleans, Inc., 793 So. 2d 912, 914-915 (Fla. 2001) [26 Fla. L. Weekly S549a] (quoting Acosta v. Richter, 671 So. 2d 149, 153-154 (Fla. 1996) [21 Fla. L. Weekly S29a]). A related principle is that when a court interprets a statute, it “must give full effect to all statutory provision.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992). Court should “avoid readings that would render part of a statute meaningless.” Unruh v. State, 669 So. 2d 242, 245 (Fla. 1996) [21 Fla. L. Weekly S104a] (quoting Forsythe, 604 So. 2d at 456). In reviewing these provisions, only one reasonable and harmonious interpretation of the statute is possible: the statute is intended to limit reimbursement of PIP benefits to $2,500.00, unless a qualified provider has determined that the claimant had an emergency medical condition.
14. Here there is no genuine issue as to any material fact. Defendant affirmatively showed that no qualified provider determined that the insured had an emergency medical condition. Plaintiff failed to present any affidavit, or any other evidence to create a material issue of fact. As such, there are no material facts in this case. See First North American Nat’l Bank v. Hummel, 825 So. 2d 502 (Fla. 2nd DCA 2002) [27 Fla. L. Weekly D2010a]; Glasspoole v. Konover Const. Corp South, 797 So. 2d 937 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D1398c] (Once the movant tender competent evidence to support his motion, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue of material fact.); Latour Auto. Sales, Inc. v. Stromber-Carlson Leasing Corp., 335 So. 2d 600 (Fla. 3d DCA 1976) (Where as here the opponent fails to come forward with any affidavit or other proof in opposition to the motion for summary judgment, the movant only need establish a prime facie case, whereupon the court may enter its summary judgment).
15. Therefore, in this case, the issue before this Court is one of law involving the legal application of a contract based upon the Florida Motor Vehicle No-Fault law, as amended. In considering the provisions of Florida Statute § 627.736(1), there is only one reasonable conclusion that gives harmony and meaning to all provisions. The available PIP benefits are limited to $2,500.00, unless there is a determination by a qualified provider that the patient in fact had an emergency medical condition.
16. In order to make the statutory intent workable, the statute must be interpreted to require the provider to provide the insured with a determination that an emergency medical condition actually exists before the insurer may be liable for payment of PIP benefits in excess of $2,500.00. To do otherwise would defeat the statutory intent to limit PIP payment, and would in effect continue to make $10,000.00 in benefits available on any claim, unless a treating provider notified the insurer that the claimant had NOT suffered an emergency medical condition. In practice, this would seldom, if ever, take place, and would defeat the purpose of the 2012 amendments.
IT IS THEREFORE
ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment against the Plaintiff, Alternative Medical Center a/a/o Wilner Henrilus, is GRANTED as the pleadings, affidavits, and other materials as would be admissible in evidence on the file show that there is no genuine issue of material fact and that as a matter of law, the Defendant has no liability to the Plaintiff. SUMMARY JUDGMENT IS ENTERED IN FAVOR OF THE DEFENDANT AND IT SHALL GO HENCE FORTH WITHOUT DAY, and the Court reserves jurisdiction to determine entitlement and amount of fees and costs to the Defendant, upon a timely motion.
