23 Fla. L. Weekly Supp. 490b
Online Reference: FLWSUPP 2305SKYLInsurance — Personal injury protection — Coverage — Emergency medical condition — Where qualified medical provider had not determined prior to filing of suit that insured suffered emergency medical condition, insurer did not breach PIP policy by limiting benefits to $2,500 — Post-suit determination of emergency medical condition does not create disputed issue of material fact preventing entry of summary judgment
DORSAL REHAB, INC. F/K/A UNITED DIAGNOSTIC & REHAB ASSOCIATES A/A/O DELUISE SKYLAR, Plaintiff(s), vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-013913 COCE 56. September 2, 2015. Linda R. Pratt, Judge. Counsel: James D. Underwood and Russel M. Lazega, Florida Advocates, Dania Beach, for Plaintiff. Neil V. Singh, Law Offices of Neil V. Singh, Fort Lauderdale, for Defendant.
ORDER ON DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT
This cause is before the Court on Defendant’s Motion for Summary Judgment. Upon consideration of the record, the case law and arguments presented, the Court finds that the following facts are undisputed:
Plaintiff submitted claims for chiropractic treatment to defendant’s insured for injuries arising out of a motor vehicle accident. Defendant paid out $2,500 in benefits and declined to pay claims in excess of $2,500 on the grounds that the medical records did not show that a physician licensed under Chapter 458 or 459, a dentist licensed under Chapter 466, or physician assistant licensed under Chapter 458 or 459, or an advanced registered nurse practitioner licensed under Chapter 464 had determined that the claimant had an emergency medical condition. The medical records show that the claimant sought treatment with plaintiff the day following her accident and was diagnosed with cervical sprain/strain, thoracic sprain/strain, lumbar radiculitis/neuritis, lumbar sprain/strain. There is no finding of an emergency medical condition in the patient’s records, and there is nothing in the medical records submitted to defendant prior to plaintiff’s demand letter or this lawsuit which would put defendant on notice that a qualified health care provider had determined that the patient had an emergency medical condition as defined by the policy of insurance and the Florida Motor Vehicle No Fault Law.1
Based on these facts, the Court finds that defendant did not breach the contract of insurance prior to the filing of this lawsuit. See: A-1 Imaging Centers, Inc. LLC a/a/o Marissa Kim v. USAA General Indemnity Co., 22 Fla. L. Weekly Supp. 961a (Broward County Court March 5, 2015).
Plaintiff has submitted the affidavit of Dr. Natalia Kogan, D.C., ARNP in opposition to defendant’s motion for summary judgment. However, the Court finds that the affidavit does not create an issue of material fact. Because it was prepared and submitted to defendant after suit was filed, it is legally insufficient to put defendant on notice of a covered loss prior to suit. Benefits are not due until defendant has received notice of a covered loss. See F.S. 627.736(4)(b).
Based upon the above findings it is
ORDERED that Defendant’s Motion for Final Summary Judgment is GRANTED. Defendant shall submit a final judgment.
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1The case of Lorraine v. Enterprise Leasing of Orlando, 22 Fla. L. Weekly Supp. 943a, (Fla. 9th Cir. Dec. 8, 2014), cited by plaintiff, is, factually distinguishable. In that case the insurance company had medical records submitted with the claim prior to suit which showed that the patient had been taken by ambulance to the emergency room following the accident, and was ultimately diagnosed and treated for a broken trapezoid bone in her wrist, requiring her to be in a cast for up to six weeks. The Court found that those medical findings of a medical doctor at the time he provided care were sufficient to meet statutory requirements of a finding of an emergency medical condition by a qualified health care provider.
