23 Fla. L. Weekly Supp. 338a
Online Reference: FLWSUPP 2304WYNDInsurance — Personal injury protection — Summary judgment — Outstanding discovery does not preclude entry of summary judgment where further discovery cannot create disputed issue of fact — Where insurer paid amounts demanded in demand letter, including PIP benefits calculated in accordance with statutory fee schedule elected in policy, insurer is entitled to final summary judgment
UNIVERSITY PHYSICAL MEDICINE, INC., As an assignee of Phyllis Wynder, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 2nd Judicial Circuit in and for Leon County. Case No. 2014SC1037. March 3, 2015. Honorable Ronald Flury, Judge. Counsel: Rinaman & Associates, P.A., Jacksonville, for Defendant.
FINAL ORDER GRANTING DEFENDANT’S MOTIONFOR PROTECTIVE ORDER RE: DISCOVERY,AND GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court at the January 12, 2015, hearing on Defendant’s Motion for Final Summary Judgment; and it appears that good and sufficient grounds have been shown for GRANTING Defendant’s Motion for Protective Order re: Discovery and GRANTING Defendant’s Motion for Final Summary Judgment. The Court being otherwise fully advised in the premises it is Ordered and Adjudged as follows:
1. Plaintiff brought this Personal Injury Protection (“PIP”) action against Defendant on July 18, 2014 for purportedly underpaid PIP benefits for date of service July 1, 2013.
2. On or about October 30, 2014, the Defendant filed a Motion for Summary Judgment with regard to payment in full of 80% of Plaintiff’s submitted charges, which relied on the policy at issue, Florida Statutes, Plaintiff’s own Pre-Suit Demand Letter, and the Affidavit of Tamara Zimmer.
3. The Plaintiff contends that the Defendant’s Motion for Summary Judgment is not ripe for consideration, because there are outstanding discovery requests, including the deposition of Defendant’s Corporate Representative.
4. The Florida Rules of Civil Procedure, Rule 1.510, allow for a Motion for Summary Judgment to be made by the Defendant “as to all or any part thereof at any time. . .”
5. Plaintiff cited to various cases for the proposition that Plaintiff should be allowed to conduct discovery before a ruling on the Defendant’s Motion for Summary Judgment is ripe. However, the case law submitted by the Plaintiff, provides an exception for ruling on a Motion for Summary Judgment when there are no issues of fact that can be discovered. Osorto v. Deutsche Bank Nat’l Trust Co., 88 So. 3d 261, 263 (Fla 4th DCA 2012) [37 Fla. L. Weekly D747a]. (Even when “incomplete discovery will not raise future disputed issues of material fact, summary judgment may be properly granted.”)
6. It is well settled law that summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Menendez v. Palm West Condominium Ass’n, 736 So. 2d 58 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D1317a].
7. Generally, discovery should be completed before a Motion for Summary Judgment is granted, “[h]owever, the general principle of law applies only when future discovery might create a disputed issue of material fact. Stated another way, when the non-moving party seeks to undertake discovery in support of a position which is not legally valid, it is not improper for the trial court to enter summary judgement before that discovery is complete.” A & B Discount Lumber & Supply, Inc. v. Mitchell, 799 So. 2d 301 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D2405b].
8. When “future discovery would not yield any new information that the trial court either did not already know, or needed to make its ruling,” summary judgment is appropriate. Herrera v. Berlo Industries, Inc., 840 So. 2d 272, 273 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D217b]. Likewise, when “discovery would not have unearthed any material facts necessary for the resolution of this issue” a Motion for Summary Judgment before the close of discovery can be properly granted. Barco Holdings, LLC v. Terminal Investment Corp., 967 So. 2d 281, 289 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2314a].
9. “A party does not have an unlimited right to discovery prior to a hearing on a motion for summary judgment. When the record becomes clear enough to disclose that further discovery is not needed to develop significant aspects of the case and that such discovery is not likely to produce a genuine issue of material facts, discovery should be ended.” Colby v. Ellis, 562 So. 2d 356, 357 (Fla. 2d DCA 1990).
10. There are no further facts that the Plaintiff can obtain from further discovery, or a deposition of the Defendant’s corporate representative, as these facts will remain the same. It is undisputed that:
a. Plaintiff submitted its Pre-Suit Demand Letter demanding payment of 80% of the submitted charges, or $176.00. (Submitted onto the record in the Affidavit of Tamara Zimmer.)
b. Defendant paid the Plaintiff 80% of the submitted charges, or $176.00, pursuant to the Plaintiff’s demand letter; the insurance policy; endorsement form A085 FL (05/12), titled, “Personal Injury Protection Coverage Endorsement;” and Florida Statutes. (Evidence of payment submitted onto the record in the Affidavit of Tamara Zimmer.)
c. The applicable insurance policy and endorsement form A085 FL (05/12), titled, “Personal Injury Protection Coverage Endorsement.” (Submitted onto the record and authenticated in the Affidavit of Tamara Zimmer.)
11. Plaintiff proffered for the first time at the hearing on January 12, 2014, that the only issue of fact that is in dispute is why Defendant paid the amount that was paid to Plaintiff. Further, Plaintiff proffered that the deposition of the Defendant’s Corporate Representative is needed to discover these facts, before the Defendant’s Motion for Summary Judgment may be heard.
12. From the record before this Court, Defendant has shown that on July 10, 2014, it paid $176, which is 80% of the $220 amount billed by Plaintiff. Plaintiff was on notice of this fact when Plaintiff received the payment. Further, this fact was entered into the record by the Affidavit of Tamara Zimmer, Exhibit “D,” the Medical Payment Log. The Defendant has demonstrated through the declarations page, authenticated into evidence, and in correspondence with Plaintiff’s counsel dated September 8, 2014, also submitted into evidence, that the other 20% of the charge is not covered under the Personal Injury Protection coverage and must be paid by the insured, because the insured did not purchase Medical Payments coverage.
13. Plaintiff’s only proffer of its need for additional discovery was the contention that it does not know why the Defendant paid 80% of the Plaintiff’s submitted charges. The Court agrees with Defendant that the facts Plaintiff purports to seek are contained within the applicable insurance policy, declarations page, and Florida Statutes, which are already in the record.
14. The applicable insurance policy, which is modified by endorsement form A085 FL (05/12), titled, “Personal Injury Protection Coverage Endorsement,” stated in pertinent part:
UNREASONABLE OR UNNECESSARY MEDICAL BENEFITS
If an insured person incurs medical benefits that we deem to be unreasonable or unnecessary, we may refuse to pay for those medical benefits and contest them.
We will determine to be unreasonable any charges incurred that exceed the maximum charges set forth in Section 627.736(5)(a)(1)(a through f) of the Florida Motor Vehicle No-Fault Law, as amended. Pursuant to the Florida law, we will limit reimbursement to, and pay no more than, 80 percent of the following schedule of maximum charges:
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f. for all other medical services, supplies and care, 200 percent of the allowable amount under the participating physicians fee schedule of Medicare Part B. . .
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However, if such services, supplies or care, is not reimbursable under Medicare Part B, as provided in this subsection f., we will limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under Section 440.13 of the Florida Statutes, and rules adopted thereunder which are in effect at the time such services, supplies or care is provided. Services, supplies or care that is not reimbursable under Medicare or workers’ compensation will not be reimbursed by us.
(Emphasis added in italics.)
15. Further, the policy complied with Florida Statute 627.736(5)(a) (2013), which stated that:
1. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
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f. For all other medical services, supplies, and care, 200 percent of the allowable amount under:
(I) The participating physicians fee schedule of Medicare Part B, except as provided in sub-sub-subparagraphs (II) and (III).
(II) Medicare Part B, in the case of services, supplies, and care provided by ambulatory surgical centers and clinical laboratories.
(III) The Durable Medical Equipment Prosthetics/Orthotics and Supplies fee schedule of Medicare Part B, in the case of durable medical equipment.
(Emphasis added.)
16. Therefore, because there are no issues of fact, and the sole issue remaining is contractual and statutory interpretation, it is proper for this Court to consider Defendant’s Motion for Summary Judgment at this time.
17. The subject policy of insurance, endorsement, and the Florida Statutes set the maximum amount allowed for the PIP coverage to reimburse the provider at 80% of the applicable fee schedule. Progressive is permitted under the subject policy of insurance, endorsements, and the Florida Statutes to “limit reimbursement to, and pay no more than, 80 percent of the following schedule of maximum charges. . .” (See the endorsement form A085 FL (05/12), titled, “Personal Injury Protection Coverage Endorsement,” submitted into evidence with the Affidavit of Tamara Zimmer.) Florida Statutes 627.736(5)(a) also allows the insurer to “limit reimbursement to 80 percent of the following schedule of maximum charges.”
18. There is no authority that requires the insurance company to pay more than what is required of them under the policy, or more than what the Plaintiff charged for a service. Tallahassee MRI, P.A. v. Progressive Consumers Ins. Co., 11 Fla. L. Weekly Supp. 1004b (Broward Cty. Ct. July 8, 2004).
19. Progressive fulfilled its contractual and statutory duty to pay 80% of the reasonable charges, under the PIP coverage of the subject policy and therefore “no action may be brought against the insurer.” Fla. Stat. 627.736(10)(d).
20. The Court also notes, as stated in Defendant’s Motion for Summary Judgment and authenticated in the supporting Affidavit of Tamara Zimmer, that Plaintiff in its Pre-Suit Demand Letter requested the Defendant “[p]lease pay 80 percent of $220.00 ($176.00) for represent University Physical Medicine, Inc.’s [sic] medical bills plus the amounts listed below.” The “amounts listed below,” which Plaintiff referenced, is a demand for statutory interest, penalty, and postage. Defendant paid the demand amount, along with statutory interest, penalty, and postage on 7/10/14. Therefore, the Defendant paid the Plaintiff’s Pre-Suit Demand pursuant to Fla. Stat. 627.736(10)(d); this provision states that if “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 . . . no action may be brought against the insurer.” The Plaintiff is now barred from demanding an additional amount in litigation.
21. The Defendant’s Motion for Protective Order is hereby GRANTED with respect to any and all further discovery requests.
22. The Defendant’s Motion for Final Summary Judgment is hereby GRANTED, with this Court retaining jurisdiction for Defendant’s Motion for Sanctions.
23. Wherefore, Defendant shall go henceforth without day and Plaintiff shall take nothing.
