24 Fla. L. Weekly Supp. 999a
Online Reference: FLWSUPP 2411APHIInsurance — Personal injury protection — Coverage — Medical expenses — Emergency medical condition — Insurer entitled to limit reimbursement to $2500 in absence of determination by qualified physician that insured had emergency medical condition — Provider seeking $1000 in benefits had obligation to establish legal entitlement to those benefits prior to initiating litigation
ALTERNATIVE MEDICAL CENTER OF FORT LAUDERDALE, INC a/a/o Alexis Philocles, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO15009519 (70). Civil Division. January 31, 2017. John D. Fry, Judge. Counsel: Abraham S. Ovadia, Boca Raton, for Plaintiff. Emilio A. Cacace, Progressive House Counsel, Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT REGARDINGEMERGENCY MEDICAL CONDITION
THIS CAUSE having come before the Court on January 12, 2017, on Defendant’s Motion for Final Summary Judgment Regarding Emergency Medical Condition and Plaintiff’s Motion for Partial Summary Judgment (Emergency Medical Condition) and the Court having reviewed both motions, the entire Court file, the case law presented, having heard argument of counsel, having made a thorough review of the matters filed of record, and being otherwise advised in the premises, the Court finds as follows:FINDINGS OF FACT
On December 4, 2015, the Plaintiff brought this suit against the Defendant alleging a breach of contract for failure to pay personal injury protection benefits for treatment rendered to Alexis Philocles as a result of an October 3, 2014 motor vehicle accident. Plaintiff rendered treatment to Alexis Philocles on October 10, 2014 through February 11, 2015. The only bills received by Defendant were from Plaintiff. Defendant limited reimbursement to $2,500 since a qualified physician had not determined that Alexis Philocles had an emergency medical condition. Prior to Plaintiff commencing suit, Defendant provided Plaintiff notice that Alexis Philocles had reached their reduced $2,500 available PIP medical benefit limits for a non-emergency medical condition. Additionally, Defendant requested Plaintiff submit documentation that an EMC has been designated for further review. Instead, Plaintiff commenced this suit without providing such documentation.
Defendant answered the complaint and included affirmative defenses that the Defendant paid out the full $2,500 amount of PIP benefits available for non-emergency medical condition treatment, thus exhausting benefits for this claim, and that because Defendant has not received designation by a qualified provider stating that claimant suffered an emergency medical condition stemming from the alleged subject accident, Defendant has not been put on notice of a covered loss beyond the coverage limits of $2,500 prior to the filing on the instant suit and therefore Plaintiff’s suit is premature.
On January 22, 2016, Defendant filed its summary judgment motion. Additionally, Defendant propounded discovery seeking any and all documentation regarding an emergency medical condition. On February 11, 2016, Plaintiff, for the first time, submitted a notice of filing emergency medical condition from Dr. Frank Paiano dated February 9, 2016. Additionally, Plaintiff filed its Motion for Partial Summary Judgment based on Dr. Paiano’s EMC determination. Thereafter, on March 3, 2016, Plaintiff filed an affidavit of Dr. Paiano whereby he attests that he made a determination on February 9, 2016 that Alexis Philocles had an emergency medical condition.
Subsequently, on January 9, 2017, thirteen months after commencing this suit and almost one year after Defendant’s summary judgment motion, Plaintiff filed the amended affidavit of Jagmohan Viroja, MD whereby he allegedly determined on November 25, 2014 that Alexis Philocles had an emergency medical condition and that he also allegedly sent this EMC determination along with a bill to Defendant on December 22, 2014 (which is before the within lawsuit was commenced).
FINDINGS OF LAW
Here, the issue before the Court is such a pure matter of law-whether the applicable policy of insurance and the provisions of the Florida No-Fault Law, as amended, limit medical benefits available to a claimant to $2,500, unless an authorized provider establishes that the claimant suffered an emergency medical condition as delineated in section 627.736(1)(a)(3)-(4), Fla. Stat., as the Defendant contends. Plaintiff contends that the amended affidavit of Jagmohan Viroja, MD creates a triable issue of fact that Defendant received an EMC determination before suit. The Court disagrees with the Plaintiff.
It is undisputed that Plaintiff provided the services in the case at bar and that the Defendant did pay for services up to $2,500. At the $2,500 threshold or somewhere in that vicinity, the record reflects that the Defendant provided explanation of benefits to Plaintiff delineating that the charges are non-reimbursable as the patient has reached their reduced $2,500 available PIP medical benefit limits for a non-emergency medical condition. Additionally, in response to Plaintiff’s demand letter, Defendant reiterated the aforesaid statement in the explanation of benefits and unequivocally requested Plaintiff, pursuant to Fla. Stat. 627.736(6)(b), submit documentation that an EMC has been designated for further review.
On January 22, 2016, the Defendant filed a Motion for Final Summary Judgment against the Plaintiff. The Plaintiff produced a document that the Court has no reason to doubt, and treats as documentation to establish that the claimant potentially suffered from an emergency medical condition. The document was served upon the Defendant on February 11, 2016. The Court finds the documentation provided by the Plaintiff legally insufficient to establish an emergency medical condition and finds same contrary to the statute, as it was provided to the Defendant after Plaintiff filed suit. The documentation Plaintiff provided, after initiating litigation, to potentially establish an emergency medical condition was the first written notice provided to the Defendant that Alexis Philocles had potentially suffered an emergency medical condition. See Bofshever Wellness Center, LLC a/a/o Ruth Cereste v. Progressive American Insurance Company, 24 Fla. L. Weekly Supp. 373a (Fla. Broward Cnty. Ct. March 10, 2016); see also Enterprise Leasing Co. v. AFO Imaging, Inc. a/a/o Santonio Simmons, 24 Fla. L. Weekly Supp. 487a (Fla. Hillsborough Cnty. Circuit Ct. Appellate October 24, 2016)(stating that “[u]nder §627.736(5)(d), written notice of a covered loss is achieved by the submission of a substantially completed CMS 1500 claim form containing all material and relevant information. Because an EMC diagnosis is directly related to the amount of benefits available for claims, it is both material and relevant information that must be provided in any notice of a covered loss for claims exceeding $2500. Here, where an EMC diagnosis was not provided, AFO did not provide Enterprise with a valid notice of a covered loss for benefits over $2500 before it filed suit”); see also Dorsal Rehab, Inc. a/a/o Deluise Skylar v. Progressive American Insurance Company, 23 Fla. L. Weekly Supp. 490b (Fla. Broward Cnty. Ct. September 2, 2015) (holding that the affidavit submitted in opposition to summary judgment did not create an issue of material fact. The court stated “[b]ecause [the affidavit] was prepared and submitted to defendant after suit was filed, it is legally insufficient to put defendant on notice of a covered loss prior to suit. Benefits are not due until defendant has received notice of a covered loss. See F.S. 627.736(4)(b).”).
Thus, it is patently clear that Plaintiff has an obligation to establish a legal right to entitlement to $10,000 in personal injury protection benefits prior to initiating litigation. See Med. Ctr. Of the Palm Beaches v. USAA Cas. Ins. Co., 202 So. 3d 88 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D2018b]. In this case, Defendant was not put on notice of an emergency medical condition until well into litigation. Plaintiff should have provided Defendant with documentation of an emergency medical condition before filing suit. Id. at 93 (holding that the provider’s demand letter was premature since it failed to respond to insurer’s pre-suit request for an EMC documentation).
Additionally, the Court finds the affidavit of Jagmohan Viroja, MD legally insufficient and does not create a material issue of fact. Based on the record evidence, the Court has many misgivings about the aforesaid affidavit which was prepared and filed thirteen months after suit was filed. Lastly, it should be noted that Plaintiff withdrew its Motion for Partial Summary Judgment during the hearing.
Accordingly, it is hereby
ORDERED and ADJUDGED that Defendant’s Motion for Final Summary Judgment is hereby GRANTED, it is further
ORDERED and ADJUDGED that Plaintiff shall take noting by this action and Defendant shall go hence without day, it is further
ORDERED and ADJUDGED that the Court shall reserve jurisdiction as to Defendant’s attorney’s fees and taxable costs.
