23 Fla. L. Weekly Supp. 302b

Online Reference: FLWSUPP 2304MAUGInsurance — Personal injury protection — Coverage — Medical benefits — Emergency services — Exhaustion of benefits — PIP insurer was primary payor for emergency services provider’s claim where provider filed substantially completed claim form within 30-day period during which insurer was required to reserve funds for payment of claims by providers of emergency services or care — Fact that secondary insurer paid claim did not relieve PIP insurer of its obligation to pay — Provider’s motion for summary judgment granted

UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, LLP (a/a/o Barbara Maughan), Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Osceola County. Case No. 2012-AP-1. L.C. Case No. 2011-SC-140. January 30, 2014. Appeal from the County Court for Osceola County, Carol E. Draper, County Court Judge. Counsel: Douglas H. Stein and Stephanie Martinez, for Appellant. Thomas Andrew Player, for Appellee.

(Before DAWSON, HIGBEE, AND JORDAN, J.J.)ORDER ON APPEAL

(DAWNSON, Judge.) Before the Court is an appeal of the County Court’s Final Judgment. This Court has jurisdiction under Article V Section 5(b) of the Florida Constitution. We dispense with oral argument pursuant to Fla. R. App. P. 9.320.

I. FACTS

On July 5, 2010, Barbara Maughan was involved in an automobile accident. (R. 1). After the accident, Maughan received treatment from Appellee. (R. 2). Appellant issued an insurance policy to Maughan for personal injury protection. (R. 2). Maughan executed an assignment of benefits to Appellee. (R. 2). Appellee billed Appellant $609.00 for the services rendered to Maughan on July 5, 2010. Elaine Poniatowski Deposition, Exhibit 1. Maughan notified Appellant of the accident on July 6, 2010. Chester Harris Deposition, pg. 10. On July 6, 2010, Appellant assigned Maughan a claim number, 001852548043. Chester Harris Deposition, pg. 12.

On July 16, 2010, Appellee’s billing company mailed a CMS 1500 form to Auto Injury Solutions (AIS). Appellant contracts with AIS and all bills directed to Appellant are sent to a P.O. Box in Daphne, Alabama at AIS address. Chester Harris Deposition, pg. 33-35.¹ AIS received the CMS 1500 form on July 19, 2010. (R. 82). AIS returned the CMS 1500 form with a letter stating “we are unable to find a claim to match in our system, therefore we are unable to process the bill and are returning it to you. . . . If you are submitting to [Appellant] for treatment due to an automobile claim, please resubmit the bills and/or correspondence along with this letter.” (R. 83). Appellee’s billing company resubmitted an identical CMS 1500 form to AIS on August 25, 2010. Elaine Poniatowski Deposition, pg. 27. AIS received the CMS 1500 form on August 30, 2010. (R. 84). This time AIS processed the identical CMS 1500 form. (R. 113). On September 1, 2010, Appellant received a wage claim from Maughan. Chester Harris Deposition, pg. 66. On September 2, 2010 Appellant paid Maughan $4,101.74 for a lost wage claim and exhausted the PIP benefits. Chester Harris Deposition, pg. 43. On September 3, 2010, Appellant sent an Explanation of Reimbursement Form stating that PIP benefits were exhausted and Appellee’s request for payment was denied. Elaine Poniatowski Deposition, pg. 19. On September 29, 2010, Appellee billed Maughan’s health care provider, Cigna, for the remaining balance. (R. 106). On October 18, 2010, Appellee received a partial payment from Cigna that pursuant to the terms of the health insurance contract, settled the balance of Maughan’s bill. (R. 106).

Appellee filed a Complaint on January 24, 2011, after receiving notice that Appellant did not intend to pay for services rendered to Maughan. (R. 1). In the Answer, Appellant raised one affirmative defense, exhaustion of benefits. (R. 10). Appellee filed a reply to Appellant’s affirmative defense arguing that Defendant failed to reserve benefits as required by Florida Statute § 627.736(4)(c). (R. 24 & 45). On November 23, 2011, Appellee filed Plaintiff’s Motion for Final Summary Judgment. (R. 73). On November 29, 2011 Appellant filed Defendant’s Motion to Compel Answers to First Set of Interrogatories (Motion to Compel). (R. 91) In the Motion to Compel, Appellant argued that it served the Interrogatories on May 3, 2011 and on November 11, 2011 made a good faith effort to obtain the answers to the Interrogatories. (R. 91). On January 31, 2012, Appellant filed Defendant’s Motion to Continue.² (R. 129). Appellant asked for a continuance based on Appellee’s failure to respond to Interrogatories. (R. 130). On January 26, 2012, Appellee filed Plaintiff’s Response to Defendant’s Motion to Continue. (R. 95). Appellee attached Plaintiff’s Response to Defendant’s Request to Produce and Answers to Interrogatories to its Response. (R. 104 & 122). On January 30, 2012, Appellant filed Defendant’s Response to Plaintiff’s Motion for Final Summary Judgment. (R. 123). On January 31, 2012, Appellant filed Defendant’s Motion for Final Summary Judgment.³ (R. 133). On March 19, 2012, the trial court entered Order Granting Plaintiff’s Motion for Final Summary Judgment. (R. 156-161). On April 19, 2012, the trial court entered Amended Final Judgment. (R. 171-172). This appeal followed.

II. ISSUES ON APPEAL

Whether the trial court erred when it entered final judgment on behalf of Appellee?

III. STANDARD OF REVIEW

The Court reviews an entry of summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) [25 Fla. L. Weekly S390a].

IV. PARTIES’ ARGUMENTS

First, Appellant argues that Appellee had no claim against Appellant at the date of filing as Appellee’s bill was paid by Ms. Maughan’s health insurer, Cigna. Second, Appellant contends that the trial court erred in entering summary judgment while an outstanding discovery request remained pending. Appellant claims that if it had received Appellee’s Unverified Answers to Defendant’s Interrogatories and a Response to Defendant’s Request to Produce sooner it could have re-deposed Ms. Poniatowski or deposed a representative of Cigna. Third, Appellant argues that the trial court erred because the insurance benefits were exhausted. Fourth, Appellant contends that it was not required to reserve benefits under Florida Statute § 627.736(4)(c) because Appellant did not receive the bill until September 3, 2010, after the expiration of the thirty (30) day reserve period. Finally, Appellant claims the record clearly established that Appellant reserved $5,000 for thirty days in accordance with Florida Statute § 627.736(4)(c).

First, Appellee argues that Appellant is the primary provider and that payment by a secondary provider does not negate Appellant’s liability for payment. Second, Appellee contends that the outstanding discovery was not material to the issues determined on summary judgment, was provided prior to the hearing, and Appellant failed to act diligently to obtain the discovery. Finally, Appellee claims the fact that Appellee submitted the initial bill within the thirty (30) day reserve period is undisputed. Appellee argues that if Appellant wished to argue that the bill was not a notice of claim due to an erroneous policy number, Appellant should have raised this as an affirmative defense.

In its Reply Brief, Appellant continues to argue that Appellee did not disavow the fact that Appellee incurred no damages in the case and that while Cigna, the secondary provider may have recourse against Appellant for reimbursement, Appellee does not. Appellant also contends that any delay in discovery was caused by Appellee’s not Appellant’s lack of diligence. Appellant claims that Appellee has the burden to show that Appellant took no action to authenticate the claim; Appellant claims this is an outstanding issue of fact. Furthermore, Appellant contends there is a factual issue with regards to AIS and Appellant’s relationship as there is no evidence that Appellee submitted the bill to Appellant, just AIS.

V. DISCUSSION

Florida Statute § 627.736(4)(c) states:

Upon receiving notice of an accident that is potentially covered by personal injury protection benefits, the insurer must reserve $5,000 of personal injury protection benefits for payment to physicians licensed under chapter 458 or chapter 459 or dentists licensed under chapter 466 who provide emergency services and care, as defined in s. 395.002, or who provide hospital inpatient care. The amount required to be held in reserve may be used only to pay claims from such physicians or dentists until 30 days after the date the insurer receives notice of the accident. After the 30-day period, any amount of the reserve for which the insurer has not received notice of such claims may be used by the insurer to pay other claims. . . . Fla. Stat. § 627.736 (2013).

The Second District Court of Appeal, relying on decisions from the Fourth and Fifth District Courts of Appeal, stated that under Florida Statute § 627.736, an “insurer is put on notice of a covered claim by the submission of a substantially complete claim form.” GEICO Gen. Ins. Co. v. Tarpon Total Health Care, 86 So. 3d 585, 588 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1027a].

Maughan contacted Appellant on July 6, 2010. No one disputes that the thirty days started running on July 7, 2010. The dispute between the parties is whether Appellee filed the claim within 30 days giving Appellant sufficient notice of the claim. Appellee maintains that the claim was received on July 19, 2010 while Appellant believes the claim was received on September 3, 2010, after the 30 day reserve period. What the Court finds disconcerting is that AIS could not process the CMS 1500 form in July but could process the CMS 1500 form in August. If Appellee altered the CMS 1500 form between the July and August submissions, the Court might find that the July CMS 1500 form was not substantially completed, but Appellee submitted an identical CMS 1500 form in August. Therefore, the July CMS 1500 form was a substantially completed form and Appellant was on notice of the claim on July 19, 2010.

Appellant’s argument that AIS’s status is in factual dispute is meritless. There are no disputed facts concerning AIS. Appellant’s employee Chester Harris testified that all medical claims are mailed to AIS to the attention of USAA Medical Mail Department at P.O. Box 5000, Daphne, Alabama 36526 for processing. Chester Harris Deposition, pg. 34-35. Appellant received notice of the claims upon receipt of the claim at AIS. Appellant cannot say that it does not receive claims until AIS sends the claim to Appellant, if Appellant requires all medical providers to send claims to AIS, and does not directly receive claims from medical providers.

In normal circumstances, a court should not grant a motion for summary judgment until the non-moving party has completed discovery. Villages at Mango Key Homeowners Ass’n, Inc. v. Hunter Dev., Inc., 699 So. 2d 337, 338 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D2271b]. However, if discovery will not raise any disputed issues of material fact the court can review and grant a motion for summary judgment. Id. Furthermore, if discovery will not yield new information that the court does not already know or need to make a ruling, the court can grant summary judgment. Id.

Appellant’s argument that summary judgment is improper because discovery was outstanding is meritless. Appellee responded to the interrogatories and production requests prior to trial. There were no other outstanding discovery requests or depositions scheduled. Appellant merely speculates in the Motion for Continuance that it might depose Cigna or re-depose Elaine Poniatowski. However, the only information that Appellant sought to obtain from either Cigna or Poniatowski was whether Cigna paid Appellee for the outstanding balance. Appellant was in possession of the record that stated the balance was paid by Cigna. Any additional depositions could not yield new information about whether the bill was paid. Appellant is not entitled to unlimited discovery or “permitted to file last-minute notices of deposition simply to delay the trial court’s consideration of a motion for summary judgment.” Villages at Mango Key Homeowners Ass’n, Inc. v. Hunter Dev., Inc., 699 So. 2d 337, 338 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D2271b].

Appellant’s insistence that Appellee’s last minute filing of the interrogatories and requests to produce did not allow time to explore other avenues of discovery does not make the trial court’s entry of summary judgment improper. Appellant did not act diligently to obtain the information. Appellant sent the request for production and interrogatories in May, 2011 and only filed a Motion to Compel in November 2011, after Appellee filed a Motion for Summary Judgment. Even after filing the Motion to Compel, Appellant did not set the Motion for a hearing. Furthermore, Appellant could have obtained an up to date balance sheet from Appellee during Elaine Poniatowski’s deposition. Poniatowski offered to print an up to date balance sheet during her deposition. Elaine Poniatowski Deposition, pg. 29.

Appellee is a proper party to bring this action. Appellant is the primary insurance provider. Under Florida Statute § 627.736(4)(c), the PIP insurer is required to reserve $5,000.00 for thirty days to pay emergency providers and for valid claims. Appellee filed a timely claim and Appellant refused to pay; Appellee is holding Appellant accountable. Appellant cannot be relieved of the obligation to pay because a secondary provider paid the claim. Appellee seeks satisfaction of the claim from Appellant so that Appellee can reimburse Cigna. This is in line with the language in Blue Cross and Blue Shield of Florida, Inc. v. Matthews, 498 So.2d 421 (Fla. 1986). The trial court and this Court are not expanding the holding in Blue Cross. Rather, the Court upholds the spirit of Blue Cross by holding PIP insurers responsible as the primary providers and making sure secondary providers like Cigna are not left to foot the bill when PIP insurers do not fulfill their statutory duties.

Appellee argues that the law forces Appellee to seek payment from the primary source relying on Hazera v. Allstate, 638 So.2d 177 (Fla. 3d DCA 1994). While this case only discusses Medicare and a federal statute that requires a PIP insurer “to be the primary payor of medical benefits over Medicare up to its recognized PIP policy limits,” Id. at 179 the case is still applicable. PIP is the primary insurer under Florida Statutes. A PIP insurer must pay according to the statutory schema before a secondary provider satisfies a claim. Appellee also relies on American Risk Assur. Co. v. Benrube, 407 So.2d 9993 (Fla 3d DCA 1981). The Third District Court of Appeal stated, “a private insurer may not refuse to pay benefits for which it is primarily liable for the reason that those expenses have been paid by Medicare.” Id. at 994-95. Similarly, Appellant cannot “refuse to pay benefits for which it is primarily liable for” because Cigna paid those expenses. It is therefore,

ORDERED and ADJUDGED that the trial court’s Order Granting Plaintiff’s Motion for Final Summary Judgment is AFFIRMED. It is therefore,

FURTHER ORDERED and ADJUDGED that Appellee’s Motion to Tax Appellate Attorney’s Fees and Costs is GRANTED. As the prevailing party, Appellee is entitled to reasonable appellate fees and costs. This case is remanded to the trial court to determine reasonable appellate fees and costs. Appellant’s Motion for Attorney’s Fees Pursuant to Proposal for Settlement is DENIED. (HIGBEE and JORDAN, J.J., concur.)

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¹Q. Okay. So let’s switch gears and talk about bills. When a healthcare provider sends a bill to USAA — like we will choose the first person here that I see on this list, Mid Florida Imaging. They must have done an X-ray or MRI or something on Ms. Maughan, and they send a bill. And I presume they send it to USAA?

A. Yes, ma’am.

Q. Okay. And what happens to that bill when it is received?

A. It goes to Auto Injury Solutions in Daphne, Alabama. Chester Harris Deposition, pg. 33-34.

Q. Okay. So a claimant or a healthcare provider, they’re given a USAA address or something to send the claim to, and it goes — if you can show me so I’m not —

A. Yes, ma’am. The address is Auto Injury Solutions. And then it’s to the attention USAA Medical Mail Department. And then it’s P.O. Box 5000 in Daphne, Alabama 36526. Chester Harris Deposition, pg. 34-35.

²While Defendant’s Motion to Continue is docketed in the Record on Appeal as filed on January 31, 2012, the Certificate of Service indicates that the Motion was served on January 25, 2012 and Appellee filed a Response on January 26, 2012. (R. 129 & 95).

³Again although docketed on January 31, 2012 it appears all parties were in possession of the Motion prior to the January 30, 2012 hearing.