23 Fla. L. Weekly Supp. 757a
Online Reference: FLWSUPP 2307ROMENOT FINAL VERSION OF OPINION
Subsequent Changes at 23 Fla. L. Weekly Supp. 980aInsurance — Personal injury protection — Coverage — Emergency services — Deductible — Insurer improperly processed medical bills out of order by applying deductible to bill from emergency service provider, which was third bill received, instead of applying deductible to first bill received — Because insurer is mandated by statute to reserve $5,000 for emergency service providers, insurer should not have applied claim by emergency room physicians to deductible — Standing — Assignment — Document that assigns insured’s PIP benefits to “facility” and “provider” confers standing on emergency room physicians as providers
EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C., as assignee of Sheena Romero, Plaintiff, v. USAA GENERAL INDEMNITY COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2014-SC-000043-O. October 7, 2015. Steve Jewett, Judge. Counsel: Mark A. Cederberg, Bradford Cederberg P.A., Orlando, for Plaintiff. John E. Eckard, II, Roig Lawyers, Orlando, for Defendant.
WITHDRAWN. Substituted opinion at FLWSUPP 2309ROME
ORDER GRANTING SUMMARY JUDGMENTFOR PLAINTIFF ON APPLICATION OF ER BILLTO THE DEDUCTIBLE AND STANDINGAND DENYING DEFENDANT’S MOTION FORSUMMARY JUDGMENT ON STANDING
THIS MATTER having come before this Honorable Court on September 11, 2015 on Plaintiff’s Motion for Final Summary Judgment bearing certificate of service date March 10, 2015) and this Honorable Court having heard arguments of counsel and being otherwise fully advised in the premises, hereby makes the following Findings of Fact and Conclusions of Law:FACTS
1. On August 24, 2013, Sheena Romero (“Romero”) was injured in an automobile accident and received emergency services and care from Plaintiff, Emergency Medical Associates of Tampa Bay, LLC (“EMATB”).
2. At the time of the accident, Romero was insured under a policy of insurance with Defendant, USAA General Indemnity Company (“USAA”) and carried personal injury protection benefits coverage (“PIP”) with a $250.00 deductible.
3. EMATB obtained an assignment of benefits from Romero when EMATB rendered the emergency services and care to Romero on August 24, 2013.
4. The first medical bill that USAA received for payment under Romero’s PIP coverage for the subject automobile accident was from St. Joseph’s Hospital in the amount of $4,634.78. This bill was received by USAA on September 7, 2013.
5. The second medical bill that USAA received for payment under Romero’s PIP coverage for the subject automobile accident was from Bay Area Injury Rehab Specialists in the amount of $826.00. This bill was received by USAA on September 9, 2013.
6. The third medical bill that USAA received for payment under Romero’s PIP coverage for the subject automobile accident was from EMATB in the amount of $630.00. This bill was received by USAA on September 13, 2013.
7. There is no dispute that: a) St. Joseph’s Hospital (first bill received) and Bay Area Injury Rehab Specialists (second bill received) do not qualify as “protected” providers under Fla. Stat. §627.736(4)(c), b) EMATB’s bill was received within thirty (30) days’ notice of the loss, c) EMATB qualifies as a “protected” provider under Fla. Stat. §627.736(4)(c).
8. For reasons unclear to this Court, USAA did not apply Romero’s $250.00 PIP deductible to the first bill received from St. Joseph’s Hospital in the amount of $4,634.78. Unexplicably, instead, USAA applied the $250 PIP deductible to the third bill received from EMATB and processed the first two (2) bills received without any application of the deductible.
9. Based upon the record evidence before the Court and for the reasons set forth below, the Court finds that: a) USAA improperly processed medical bills out of order by applying the $250.00 PIP deductible to the third bill received from EMATB instead of applying the $250.00 PIP deductible to the first bill received from St. Joseph’s Hospital, b) USAA improperly processed EMATB’s bill by applying the $250.00 PIP deductible to EMATB’s bill in derogation of Fla. Stat. §627.736(4)(c) and c) the assignment of benefits executed by Romero on August 24, 2013 is a valid assignment of benefits in favor of EMATB and clearly assigns Romero’s benefits under the policy of insurance to EMATB, including the right to file a lawsuit to collect overdue PIP benefits.
CONCLUSIONS OF LAW
The legal issues presented here are whether: 1) USAA improperly processed medical bills by applying the PIP deductible to bills out of order in derogation of Fla. Stat. §627.736(4) and Fla. Stat. §627.739(2); 2) USAA was required to reserve and hold EMATB’s bill for payment pursuant to Fla. Stat. §627.736(4)(c) and 3) the assignment of benefits executed by Romero in favor of EMATB conferred standing upon EMATB to pursue this action.APPLYING THE PIP DEDUCTIBLE OUT OF ORDER
With regard to USAA’s decision to apply Romero’s PIP deductible to the third bill received instead of applying the PIP deductible to the first bill received, it is USAA’s position that even though EMATB’s bill was the third bill received, it should get moved to the “front of the line” as the first “compensable” bill received. However, there is no suggestion by USAA that the bills from St. Joseph’s Hospital and Bay Area Injury Rehab Specialists (first and second bills received) were not compensable. To the contrary, those two bills were paid by USAA (without applying the deductible to either bill). It is EMATB’s position that bills are to be paid, under the PIP statute, as the loss accrues (in order of receipt) and that bills that are not protected under Fla. Stat. §627.736(4)(c) must be applied to any applicable PIP deductible pursuant to Fla. Stat. §627.739.
The Court finds no merit to USAA’s argument and finds the bills were improperly processed out of order by USAA for the following reasons: 1) Fla. Stat. §627.736(4) clearly states that “[b]enefits due from an insurer under ss. 627.730-627.7405 are primary . . . and are due and payble as loss accrues upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued under ss. 627.730-627.7405” (emphasis added) and with regard to bills that should be applied to a PIP deductible (bills that do not qualify for protection under (4)(c)), 2) Fla. Stat. §627.739(2) clearly states that “[t]he deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736” (emphasis added).
There is no dispute that the first bill received by USAA in this case was the bill from St. Joseph’s Hospital in the amount of $4,634.78. Under any scenario, had USAA applied the $250.00 PIP deductible in this case to this first received bill, the deductible would have been exhausted upon doing so. Even under Defendant’s own argument that bills received must be applied to the deductible pursuant to Fla. Stat. §627.739(2), the deductible should have been applied to the first bill received from St. Joseph’s Hospital. Under Fla. Stat. §627.736(4)(c), only $5,000.00 of the $10,000.00 in PIP benefits are to be reserved and held for payment to providers of emergency services and care who are licensed under chapter 458, 459 or 466 and who submit their bills within thirty (30) days’ notice of loss to the carrier (i.e. EMATB in this case). The other $5,000.00 in PIP benefits is available immediately for processing of medical bills from other providers. The Court agrees with EMATB and finds, in this case, that USAA could have, and should have, processed the first bill received from St. Joseph’s hospital by applying the contractual PIP deductible of $250.00 to that bill and then paying the remainder, pursuant to the policy, under Romero’s PIP coverage. Had the bill been properly processed, in this manner, the deductible would have been exhausted, the deductible would not have been improperly applied to the third bill received (EMATB’s bill) and EMATB would have been paid the additional PIP benefits sued upon in this matter.
FAILURE TO COMPLY WITH LEGISLATIVEMANDATE OF FLA. STAT. §627.736(4)(c)
In this case, USAA argues that it had no obligation to reserve and hold EMATB’s bill for payment under the (4)(c) $5,000.00 reserve, because it could apply the bill to the deductible. EMATB argues that Fla. Stat. §627.736(4)(c) carves out a protected class (providers of emergency services and care) whose bills, if timely submitted, must be reserved and held for payment as intended by the legislature when the provision was added to the PIP statute. EMATB further argues that, as a result of USAA’s improper claim processing methodology in this case, EMATB’s bill was not reserved and held for payment as required by (4)(c). Even if USAA had not improperly processed medical bills by applying the PIP deductible to bills out of order in derogation of Fla. Stat. §627.736(4) and Fla. Stat. §627.739(2) as discussed above, the Court agrees with EMATB and finds that USAA was required to reserve and hold EMATB’s bill for payment pursuant to Fla. Stat. §627.736(4)(c). Instead of complying with this statutory mandate, USAA improperly applied EMATB’s bill to the PIP deductible resulting in reduced payment to EMATB (the complete antithesis of the intent behind (4)(c)).
This exact issue has been addressed by the Ninth Judicial Circuit Appellate Court in the following matters: United Services Automobile Association (Appellant) v. Emergency Physicians of Central Florida, LLP (a/a/o Barbara Maughan)(Appellee), APPELLATE CASE NO.: 2012-AP-1 (Fla. 9th Jud. Cir. 2014), Progressive Select Insurance Company (Appellant) v. Emergency Physicians of Central Florida, LLP a/a/o James Hair (Appellee), APPELLATE CASE NO.: 2014-AP-14 (Fla. 9th Jud. Cir. 2014), Mercury Insurance Company of Florida (Appellant) v. Emergency Physicians of Central Florida, LLP (Tina House) (Appellee), APPELLATE CASE NO.: 2013-CV-000046-A-O (Fla. 9th Jud. Cir. 2015), Progressive American Ins. Co. (Appellant) v. Emergency Physicians of Central Florida, LLP a/a/o Raymond Damus (Appellee), APPELLATE CASE NO.: 2014-CV-00003-A-O (Fla. 9th Jud. Cir. 2015). This Court agrees with the reasoning and analysis set forth in the above-cited Ninth Judicial Circuit Appellate Court Orders and recognizes and finds that it is bound by these controlling circuit appellate decisions in this case. Specifically, the implementation of Fla. Stat. §627.736(4)(c) demonstrates the legislature’s intent to provide an additional level of protection for emergency care providers that would ensure payment of their bills. Pursuant to (4)(c), the deductible must first be applied to benefits paid to non-priority providers when both priority and non-priority providers seek payment of PIP benefits. When a priority provider submits a bill for payment to a PIP carrier and satisfies each of the requirements in (4)(c), it is to be paid from the $5,000 reserve and its charges cannot be used to satisfy an elected deductible. The reserve is automatically set aside and made available for payment. Had USAA complied with the statutory mandate to reserve EMATB’s bill for payment pursuant to Fla. Stat. §627.736(4)(c), EMATB’s bill would have been paid in full under Romero’s PIP coverage, including the additional PIP benefits sued upon in this matter.
STANDING/ASSIGNMENT OF BENEFITS
USAA argues that the assignment of benefits at issue in this matter does not confer standing upon EMATB because EMATB is a “different entity” than the “Facility” (St. Joseph’s Hospital) where the services were rendered and that EMATB is not mentioned specifically within the assignment. EMATB argues that EMATB (the emergency physicians who rendered emergency services and care to Romero in the Emergency Room at St. Joseph’s Hospital) undisputably meets the definition of “Provider” within the assignment and that ¶ 17 Assignment of Insurance and Other Benefits of the document clearly assigns all of Romero’s rights and interests under the subject policy to EMATB, a defined “Provider.” The Court agrees that ¶ 17 of the assignment clearly distinguishes between “Facility” and “Provider” and that the document clearly assigns Romero’s benefits under the policy to the “Facility” and the “Provider” (EMATB).
A review of Florida law on the topic of assignments confirms that there are no express requirements that an assignment contain any particular words or terms. Assignments may be express or implied by the circumstances. Tunno v. Robert, 16 Fla. 738 (Fla. 1878); Magnum v. Susser, 764 So.2d 653 (Fla. 1st DCA 2000) [25 Fla. L. Weekly D1216a]. An assignment may be partly in writing, partly parol or it may be by a showing of circumstances in which the debtor is justified in making payment, regardless of whether there is anything in writing or in parol betweent he assignor and assignee. Protection House, Inc. v. Daverman and Associates, 167 So.2d 65 (Fla. 3rd DCA 1964). The law is clear that a valid equitable assignment exists where it is necessary to effectuate the plain intent of the parties or where to hold otherwise would be just. See Giles v. Sun Bank, NA, 450 So.2d 258 (Fla. 5th DCA 1984). No particular words or form of instrument is necessary to effect an equitable assignment, and any language, however informal, which shows an intention on one side to assign a right and an intention on the other side to receive it, if there is valuable consideration, will operate as an effective assignment. Id. See also, Boulevard Nat’l Bank of Miami v. Air Metal Indus., Inc., 176 So.2d 94 (fla. 1865).
Additionally, Florida appellate case law provides excellent guidance on the lack of distinction between a direction to pay and an assignment. See generally, State Farm Fire and Cas. Co. v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990); Schuster v. Blue Cross & Blue Shield of Florida, Inc., 843 So.2d 909 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D505a]; Hartford Ins. Co. of Midwest v. O’Connor, 855 So.2d 189 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2140a]; Orion Ins. Co. v. Magnetic Imaging Systems I, 696 So.2d 475 (Fla. 3rd DCA 1997) [22 Fla. L. Weekly D1595c]; State Farm Mut. Auto. Ins. Co. v. Gonnella, 677 So.2d 1355 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D1799d].
After careful review and consideration of the assignment of benefits upon which EMATB relies upon to assert standing in the instant matter, the Court agrees with EMATB’s position and finds that the document clearly assigns from Romero, to EMATB (“Provider”), “all of my rights and interests to any and all benefits or other recovery of any type whatsoever receivable by me or on my behalf arising out of any policy of insurance insuring me . . .” Such assigned “rights” and “interests” include, but are not limited to, the right for EMATB to file suit to collect payment(s) due and owing under the subject policy of insurance. Accordingly, the assignment of benefits executed by Romero in favor of EMATB conferred standing upon EMATB to pursue this action.
ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for Summary Judgment is GRANTED.
2. Defendant’s Motion for Summary Judgment is DENIED.
