23 Fla. L. Weekly Supp. 638a
Online Reference: FLWSUPP 2306CHAMInsurance — Personal injury protection — Workers’ compensation lien — Summary judgment is entered in favor of PIP insurer on claim for reimbursement of bills that form basis for workers’ compensation lien paid by insured with funds received from personal injury settlement where neither insured nor medical providers timely submitted medical bills to insurer within 35 days of treatment, and insured did not serve pre-suit demand letter on insurer
MADDISON CHAMBERLAIN, Plaintiff, vs. USAA GENERAL INDEMNITY COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Brevard County. Case No. 05-2014-SC-049344-XXXX-XX. June 16, 2015. David E. Silverman, Judge. Counsel: Daniel P. Faherty, Telfer, Faherty, Anderson & Hawkins, P.L., Titusville, for Plaintiff. Randall A. Wainoris, Dutton Law Group, P.A., Tampa, for Defendant.
ORDER DISPOSING OF MOTIONSFOR SUMMARY JUDGMENT
This cause, having come before this Court on Plaintiff’s and the Defendant’s respective Motion for Summary Judgment and the Court having considered the pleadings, appropriate sworn filings and the arguments of counsel and being otherwise advised in the premises, the Court finds and concludes, as follows:
1. This is claim for Personal Injury Protection Benefits involving a negotiated worker’s compensation lien paid by the plaintiff with funds received from a personal injury settlement.
2. It is undisputed that the plaintiff did not seek reimbursement from the defendant for reimbursement of the worker’s compensation lien until approximately eleven (11) months after the motor vehicle accident.
3. The defendant’s Motion for Summary Judgment contends that the plaintiff cannot maintain the instant lawsuit for benefits as a result of failing to serve USAA with a valid pre-suit demand letter prior to the initiation of this litigation and the failure to timely submit the bills.
4. § 627.736(10), Fla. Stat., provides that the notice of intent to initiate litigation is, “a condition precedent to filing any action for benefits under this section,” and sets forth the requisite content of the notice.
5. There is no genuine issue of fact as to whether the statutorily-mandated demand letter was submitted prior to the initiation of this lawsuit; it was not.
6. The purpose of the notice provision is to permit an insurer to investigate a claim contemporaneously and noncompliant delay may impair such investigation.
7. § 627.736(5)(c)1, Fla. Stat., sets forth the period in which the statement of charges must be furnished to the insurer and that the insurer is not required to pay charges for treatment or services rendered more than 35 days before the postmark date or electronic transmission date of the statement.
8. Neither the plaintiff nor the medical providers timely submitted to the defendant their bills or supporting documentation. There is no genuine issue of material fact as to whether the charges contained in the plaintiff’s lien were submitted to the defendant within the 35 day period set forth in § 627.736(5)(c); they were not.
9. Cannino v. Progressive Express Ins. Co., 58 So.3d 275 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D2866b] and South Carolina Ins. Co. v. Arnold, 467 So.2d 324 (Fla. 2d DCA 1985) are inapplicable because, while they establish entitlement to reimbursement for bills that form the basis of a worker’s compensation lien, they do not address the statutory requirements of pre-suit notice or timely submission of the bills.
10. As a result of the Court’s decision as to the notice and the timeliness of the submission of the bills, the Court does not address the defendant’s remaining contentions including the submission of the bills by the plaintiff rather than the providers and the sufficiency of the documentation.
Therefore, it is hereby ORDERED and ADJUDGED as follows:
a. The defendant’s Motion for Summary Judgment is granted;
b. The plaintiff’s Motion for Summary Judgment is denied; and,
c. The Court reserves jurisdiction to enter judgment and to assess attorney’s fees and costs to the extent appropriate under applicable law.
__________________FINAL ORDER OF DISMISSAL
THIS CAUSE having come before the Court upon the Notice of Voluntary Dismissal against Defendant, USAA General Indemnity Company, and the Court being fully advised in the premises, it is therefore
ORDERED AND ADJUDGED that the claims of Plaintiff against Defendant, USAA General Indemnity Company, are hereby dismissed, the respective parties to bear their own costs and attorney’s fees, and it is further.
