23 Fla. L. Weekly Supp. 185c
Online Reference: FLWSUPP 2302KOWEInsurance — Personal injury protection — Coverage — Medical expenses — Emergency medical condition — Declaratory action — Action seeking determination of whether coverage extends to $10,000 in benefits available when there is determination of emergency medical condition or limited to $2,500 is moot where insurer had received proof of emergency medical condition and paid $10,000 in benefits at time complaint was filed — Where insurer had already paid $2,500 in benefits and had not received proof of emergency medical condition at time provider submitted its bills, provider failed to respond to insurer’s request for information regarding existence of emergency medical condition before sending demand letter, and insurer paid benefits in excess of $2,500 once provider supplied proof of emergency medical condition, insurer was never in breach of contract — Provider’s motion to amend complaint to abandon declaratory action and add counts for breach of contract for late payment and for penalty and postage is denied — Amendment would be futile since claim was never overdue
NEILEN INC., d/b/a HEALTHPOINT CHIROPRACTIC a/a/o KIM OWEN, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 14-022693, Division 54. May 27, 2015. Stephen J. Zaccor, Judge. Counsel: Kathy Eikosidekas, Marks & Fleischer, Ft. Lauderdale, for Plaintiff. Scott W. Dutton, Dutton Law Group, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND DENYING PLAINTIFF’SMOTION FOR LEAVE TO AMEND THE COMPLAINT
This cause came before the court on May 22nd, 2015 on Plaintiff’s Motion for Leave to Amend the Complaint and on the Defendant’s Motion for Summary Judgment.
ANALYSIS AND FINDINGS OF FACT
Neilen Inc. (hereinafter the Plaintiff), filed a declaratory action against USAA Casualty Insurance Company (hereinafter the Defendant) regarding the amount of personal injury protection benefits under the Florida’s No Fault law.
A covered loss occurred on April 30th, 2014. The Plaintiff treated the insured from July 9th, 2014 through July 30th, 2014. The Defendant initially denied the claim as there had been no determination by a qualified individual that the claimant suffered an Emergency Medical Condition (hereinafter EMC) and $2,500 had already been paid. Furthermore, the Defendant submitted an Explanation of Reimbursement indicating the same.
On August 14th, 2015 the Plaintiff sent a Pre-Suit Demand letter for the unpaid benefits. On September 17th, 2014 the Defendant responded to the Pre-Suit Demand letter by indicating that $2,500 had already been paid and there has been no determination the insured had an EMC. On October 9th, 2014 the Plaintiff provided the Defendant with proof of an EMC and the Defendant paid the claim in full on October 23rd, 2014. On November 24th, 2014 this action was filed. On December 31st, 2014 the Defendant filed its Answer, Affirmative Defenses, and this Motion for Summary Judgment. On May 4th, 2015 the Plaintiff filed its Motion for Leave to Amend the Complaint.
The Plaintiff maintains their proposed Amendment defeats the Defendant’s Motion for Summary Judgment. “One may not alter his legal theory in order to defeat summary judgment.” Obrien v. Young, 538 So.2d 112 (Fla. 2nd DCA 1989). If however, the Plaintiff may have a cause of action if properly pled, then the proper procedure is to rule on the Motion for Summary Judgment leaving open the possibility of an amended complaint. Id.
DEFENDANT’S MOTION FORSUMMARY JUDGMENT
There are no factual disputes. “When the material facts are undisputed, they form a question of law which the trial court is empowered to decide on a motion for summary judgment.” Richmond v. Florida Power & Light Co., 58 So.2d 687 (Fla.1952).
The Defendant maintains it is entitled to Summary Judgment because the Plaintiff’s declaratory action is moot, or in the alternative that benefits in excess of $2,500 are not due and owing until the determination of an EMC. The Defendant prevails on both theories.MOOTNESS
When there is no “actual or present need” based on the existing facts to issue a declaration the issue is moot. Santa Rosa County v. Admin. Com’n., Div. of Admin. Hearings, 661 So.2d 1190 (Fla. 1995) [20 Fla. L. Weekly S333a]. The Plaintiff’s complaint sought:
This case is therefore limited solely to the court’s interpretation of the No Fault Statute and Defendant’s Policy in order to determine whether there is $10,000 or $2,500 of medical expense coverage.
When the Plaintiff filed the complaint the Defendant had already paid $10,000 in benefits. Based upon the existing facts there is no need for this court to declare the amount of coverage available. Therefore, the issue framed in the complaint is moot and Judgment should be entered for the Defendant.
EMERGENCY MEDICAL CONDITION
When the Plaintiff submitted its bills to the Defendant, the Defendant had already paid $2,500 in benefits. The Defendant denied the claim as no EMC had been established. Further, the Defendant requested information regarding the existence of an EMC and received nothing. This court has previously ruled an insurer did not improperly withhold payment benefits in excess of $2,500 absent a determination of an EMC. See Florida Spine & Joint Inst., a/a/o Walter Koos, v. U.S.A.A., 22 Fla. L. Weekly Supp. 957a (Broward County 2015). §§ 627.736(1)(a)(3) and (4) of Florida Statutes provide that benefits are capped at $2,500 unless and until a qualified individual determines there is an EMC. Therefore, the Defendant was not in breach of contract when the pre-suit demand letter was filed. Once the Defendant received notification of an EMC, it paid benefits in excess of the $2,500. As the Defendant was never in breach, judgment should be entered for the Defendant.
MOTION FOR LEAVE TO AMEND THE COMPLAINT
The Plaintiff seeks to amend its complaint to abandon the Declaratory Action and add one count of breach of contract for late payment and one count of breach of contract for penalty and postage. Florida Rule of Civil Procedure 1.190(a) provides that leave to amend “shall be given freely when justice so requires.” “Leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.” Life Gen. Sec. Ins. Co. v. Horal, 667 So.2d 967, 969 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D434a].ABUSE
This is the Plaintiff’s first attempt to amend the complaint. Therefore, there is no record of abuse.FUTILE
The Plaintiff’s proposed amendment would be futile. Proposed Count 1 claims the Defendant breached the contract because it furnished a late payment in violation of §627.736(4)(b), specifically:
Defendant failed to make payment of the PIP benefits within thirty (30) days as required by Florida Statute 627.736(4)(b) and they did not come forth with reasonable proof to establish that the benefits were not due. This is a breach of the contract for No Fault Benefits.
§627.736(4)(b) of Florida Statutes provides:
(b) Personal injury protection insurance benefits paid pursuant to this section are overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. However:
4. Notwithstanding the fact that written notice has been furnished to the insurer, payment is not overdue if the insurer has reasonable proof that the insurer is not responsible for the payment.
When the Plaintiff sent the pre-suit demand letter to the Defendant $2,500 in PIP benefits had already been paid. No EMC had been established by a qualified individual at this point. The Defendant issued and Explanation of Reimbursement indicating the same and requested information regarding an EMC. None was provided. As previously indicated, §§ 627.736(1)(a)(3)&(4) cap benefits at $2,500 unless and until a qualified individual determines the insured has an EMC. No EMC having been determined, benefits were paid and not overdue. Furthermore, the lack of an EMC is “reasonable proof” that benefits in excess of $2,500 are not warranted and the explanation of reimbursement documented that “reasonable proof.”
Therefore, amending Count I alleging Breach of Contract Pursuant to Fla. Stat. 627.736(4)(b) — Late Payment, would be futile.
Proposed Count II claims the Defendant breached the contract because it failed to pay penalty and postage pursuant to §627.736(10), which provides in pertinent part:
(a) As a condition precedent to filing any action for benefits under this section, written notice of an intent to initiate litigation must be provided to the insurer. Such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).
(c) Each notice required by this subsection must be delivered to the insurer by United States certified or registered mail, return receipt requested. Such postal costs shall be reimbursed by the insurer if requested by the claimant in the notice, when the insurer pays the claim.
(d) If, within 30 days after receipt of notice by the insurer, the overdue claim specified in the notice is paid by the insurer together with applicable interest and a penalty of 10 percent of the overdue amount paid by the insurer, subject to a maximum penalty of $250, no action may be brought against the insurer.
The Plaintiff sent its pre-suit demand letter to the Defendant on August 14th, 2014 and included a demand for postage totaling $6.48. On August 14th, 2014 $2,500 in benefits had already been paid and there had been no determination of an EMC. As such, no benefits were overdue. Because no benefits were overdue, the pre-suit demand letter does not comply with §627.736(10)(a) which requires that “[s]uch notice may not be sent until the claim is overdue.” Since the pre-suit demand letter was premature the Plaintiff is not entitled to postage, nor is there any penalty for overdue payments pursuant to §627.736(10)(d).
Therefore, amending Count II alleging Breach of Contract Pursuant to Fla. Stat. 627.736(10) — Penalty and Postage, would be futile.PREJUDICE
This prong is measured “primarily in respect to the defendant’s ability to prepare for the new allegations prior to trial on the merits.” Dimick v. Ray, 774 So. 2d 830, 833 (Fla. 4th DCA 2000) [26 Fla. L. Weekly D93a]. This case is in the early stages of litigation and the Defendant would have ample time to prepare a defense to the allegations in the proposed amended complaint. Therefore, there is no prejudice to the Defendant.CONCLUSION
Although there is no abuse nor prejudice in allowing the amendment, it would be futile. The analysis is qualitative not quantitative. “Leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.” Life Gen. Sec. Ins. Co. v. Horal, 667 So.2d 967, 969 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D434a] (emphasis added.) Having found the futility of the amendment outweighs lack of abuse or prejudice, the Plaintiff’s motion for leave to amend is denied. See Carr ex rel. Estate of Grushka v. PersonaCare of Pompano E., Inc., 890 So. 2d 288, 289 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D2655a] (A trial court’s refusal to allow amendment of a pleading is an abuse of discretion unless [among other reasons not pertinent] leave to amend is futile.)
Accordingly, the Defendant’s Motion for Summary Judgment is hereby GRANTED; The Plaintiff’s Motion for Leave to Amend the Complaint is DENIED.
