23 Fla. L. Weekly Supp. 366a

Online Reference: FLWSUPP 2304KENSInsurance — Personal injury protection — Coverage — Emergency medical condition — Under amendments to 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 has not determined that insured suffered emergency medical condition — Motion to stay case pending resolution of cases pending before district court of appeal concerning issue of when benefits above $2,500 become available when there has been determination of emergency medical condition is denied where facts in appealed cases are different from facts in instant case, and stay would result in inordinate delay — Motion to abate case pending resolution of appealed cases is denied — Abatement is not appropriate when cases do not involve same parties

GOLD COAST CHIROPRACTIC CENTER, P.A. A/A/O FEVRIER KENSON, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 502014SC007673XXXXSB RD. July 28, 2015. Honorable Reginald Corlew, Judge. Counsel: Rory P. Biggins and Abraham S. Ovadia, Boca Raton, for Plaintiff. Kevin P. Sincerbox and Patrick J. Gerace, Law Offices of Neil V. Singh, Fort Lauderdale, for Defendant.

ORDER DENYING PLAINTIFF’S MOTIONTO ABATE/STAY AND/OR FOR EXTENSIONOF TIME AND GRANTING DEFENDANT’SMOTION FOR FINAL SUMMARY JUDGMENT

THIS CAUSE having come before the Court on July 23, 2015, pursuant to Plaintiff’s Motion to Abate/Stay and/or For Extension of time and Defendant’s Motion for Final Summary Judgment with Memorandum of Law Regarding Emergency Medical Condition, 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. Plaintiff filed suit against Progressive Select Insurance Company for Personal Injury Protection (PIP) benefits as assignee of Fevrier Kenson (hereinafter “Claimant”), for unpaid medical bills in connection with treatment provided to the Claimant for injuries allegedly sustained as a result of a motor-vehicle accident which allegedly occurred on November 21, 2013.

2. At the time of the alleged accident, the Claimant was insured under a contract of insurance issued by the Defendant that provided PIP benefits in accordance with the Florida Motor Vehicle No-Fault Law, as amended in 2012 (the “policy”).

3. Progressive limited reimbursement of PIP benefits under the subject policy of insurance to $2,500.00; because during the course of treatment for the alleged injuries there was no determination that the Claimant had an Emergency Medical Condition (EMC) as a result of the alleged automobile accident.

4. Further, the record reveals that Plaintiff’s Complaint does not allege that the Claimant suffered an emergency medical condition from the alleged subject accident.

5. It is undisputed that the Defendant paid the Plaintiff the full $2,500.00 available under the PIP portion of the subject policy of insurance for this non-emergency medical condition loss.¹

6. It is the Defendant’s contention that it properly limited PIP coverage to $2,500.00 in this case due to the absence of any proof that the Claimant suffered from an EMC as a result of the alleged subject accident.

7. The Defendant timely filed the following items with the Court prior to the hearing(s) held on July 23, 2015: 1) Defendant’s Motion for Summary Judgment with Memorandum of Law Regarding Emergency Medical Condition; and 2) Affidavit of Adjuster Jonathan Caballero in Support of Defendant’s Motion for Final Summary Judgment on Non-Emergency Medical Condition. The affidavit of Jonathan Caballero 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. Jonathan Caballero testified in his affidavit that the medical records failed to show, and Plaintiff failed to provide, a determination from a qualified medical provider that Claimant suffered from an emergency medical condition, and that Defendant paid Claimant the PIP coverage limit of $2,500.00.

8. Defendant asserts that the language of the subject policy and Florida Motor Vehicle No-Fault Law limits reimbursement of PIP benefits to Claimant to $2,500.00, as Defendant did not receive any proof that Claimant suffered an emergency medical condition from the alleged 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 instant lawsuit.

9. Defendant’s policy at the time of the alleged subject accident contained Endorsement Form A085 FL (05/12), attached as part of Jonathan Caballero’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).

10. 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.

11. 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.

12. Following the accident, the Claimant 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 December 2, 2013 to March 25, 2014. 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.

13. Plaintiff did not file any affidavits, medical records, or any evidence in opposition to Defendant’s 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 in opposition to Defendant’s motion or any other document for this Court to consider when ruling on Defendant’s Motion for Summary Judgment.

14. The Court record contains no evidence whatsoever that Claimant suffered from an emergency medical condition as a result of the alleged subject accident.CONCLUSIONS OF LAW

15. 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.

16. 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.

17. 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 genuine issues of 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) (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).

18. 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.

19. 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.

20. Prior to the commencement of argument on Defendant’s Motion for Final Summary Judgment, this Court heard Plaintiff’s Motion to Abate/Stay and/or For Extension of Time and Defendant’s Response in Opposition. Within Plaintiff’s motion and at oral argument Plaintiff argues that this matter should be stayed as the case of Medical Center of the Palm Beaches d/b/a Central Palm Beach Physicians & Urgent Care, Inc. a/a/o Carmen Santiago v. USAA Casualty Insurance Company, FLWSUPP 2202CSAN [22 Fla. L. Weekly Supp. 279a], Case No. 502013SC012523XXXMB, and L. Lee Smith, D.C., P.A. a/a/o Petrina Easton v. USAA Casualty Insurance Company, 22 FLWSUPP 2204EAST [22 Fla. L. Weekly Supp. 445a] Case No. 502104CC005325XXXXMB²,³ currently have Certified Questions of Great Public Importance pending before the Fourth District Court of Appeals concerning when benefits above $2,500.00 become available where there has been a certification by a medical provider authorized by the statute that an emergency medical condition exists.

21. This Court finds that the facts in the cases cited by Plaintiff in support of its’ Motion to Abate/Stay and/or For Extension of Time are different from the facts in the instant matter as the two cases cited by Plaintiff deal with different parties, different policies of insurance, different accidents, and different claimants with different medical conditions. In the matter of Medical Center of the Palm Beaches d/b/a Central Palm Beach Physicians & Urgent Care, Inc. a/a/o Carmen Santiago v. USAA Casualty Insurance Company, there was in-fact written notice of a determination of Carmen Santiago’s emergency medical condition received by the Defendant, USAA, after litigation commenced, and USAA made payment to the Plaintiff while in suit. These facts are wholly distinguishable from the instant matter where, to date, there has still been no determination by a qualified medical provider that Fevrier Kenson suffered an emergency medical condition as a result of the alleged accident.

22. If a stay were to be entered in this case it would be indefinite and dependent upon factors in which the parties to this action have absolutely no control. When the pending appellate matters cited in Plaintiff’s Motion to Stay/Abate will be resolved is anyone’s guess. Consequently, a stay entered here could lead to excessive delay, a harm not capable of being remedied on direct appeal. See Shoemaker v. State Farm Mut. Auto. Ins. Co., 890 So.2d 1195 (Fla. 2005) [30 Fla. L. Weekly D173a]; Williams v. Edwards, 604 So.2d 930 (Fla. 1992). While a trial court has broad discretion to grant a motion to stay, a stay of proceedings can amount to a departure from the essential requirements of law if it causes a material injury that cannot be remedied on direct appeal, such as excessive delay. See Smith v. St. Vil, 765 so.2d 60 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D372b]. In Williams, The Fifth District ruled that the trial court’s stay of proceedings was an abuse of discretion and quashed the court’s order. Williams v. Edwards, 604 So.2d 930, 931 (Fla. 1992). To allow trial courts to stay cases until cases which resolve issues pending before the Supreme Court [are resolved] would lead to inordinate delay and confusion at the trial court level. Id. [Emphasis Added] In the present case, the certified question is before the Fourth District Court of Appeals, so there is a likelihood of even further delay of the proceedings in this action than the situation in Williams, due to the potential of even further appeals after the Court’s ruling. Plaintiff’s Motion to Abate/Stay and/or For Extension of Time in this matter is therefore denied.

23. Additionally, abatement is not an available remedy in this case. As noted in Footnote 1 of Williams v. Edwards, abatement is appropriate only where two actions are pending simultaneously which involve the same parties or substantially the same causes of action. Citing Lightsey v. Williams, 526 So. 2d 764, 765 (Fla. 5th DCA 1988). The parties must be identical. See Relinger v. Fox, 55 So.3d 638, 640 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D294a]. Additionally, abatement requires that the action begin anew when it becomes proper to do so. Perry v. Fireman’s Fund Ins. Co., 379 So. 2d 429, 430 (Fla. 2d DCA 1980).

IT IS THEREFORE

ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment against the Plaintiff, Gold Coast Chiropractic Center, P.A., a/a/o Fevrier Kenson, is hereby 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 HEREBY ENTERED IN FAVOR OF THE DEFENDANT AND IT SHALL GO HENCE FORTH WITHOUT A DAY, and the Court reserves jurisdiction to determine entitlement and amount of attorney fees and costs to the Defendant, upon a timely motion.

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¹Paragraph twelve (12) of Plaintiff’s Complaint states that as of the filing of the complaint, $2,500 was paid to Plaintiff.

² L. Lee Smith, D.C., P.A. a/a/o Petrina Easton v. USAA Casualty Insurance Company, Case No. 502104CC005325XXXXMB [22 Fla. L. Weekly Supp. 445a], was not cited by Plaintiff in its’ Motion to Abate/Stay and/or For Extension of Time, but was cited by Plaintiff Counsel during the hearing on July 23, 2015.

³It should be noted that in both cases cited by the Plaintiff the trial court entered Final Summary Judgment in favor of the Defendant, USAA Casualty Insurance Company.