24 Fla. L. Weekly Supp. 557b
Online Reference: FLWSUPP 2407AUGUInsurance — Personal injury protection — Discovery — Depositions — Insurer that paid claim in accordance with permissive statutory fee schedule is entitled to depose insured to verify that services were in fact provided, but may not depose insured about reasonableness of charges
AUGUSTA PEREZ, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, General Jurisdiction Division. Case No. 11-13574 SP 25 (2). August 31, 2016. Gina Beovides, Judge. Counsel: Walter A. Arguelles, Arguelles Legal, P.L., Miami, for Plaintiff. Philip A. Coffaro II, Conroy, Simberg, Ganon, Krevans, Able, Lurvey, Morrow & Schefer, P.A., Miami, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORPROTECTIVE ORDER REGARDING DEFENDANT’SNOTICE OF TAKING DEPOSITION DUCESTECUM OF PLAINTIFF
This cause having come before the court for hearing on August 29, 2016, on Plaintiff’s Motion For Protective Order Regarding Defendant’s Deposition Duces Tecum of Plaintiff, the Court having reviewed the motion and entire Court file, read relevant legal authority, heard argument from counsel of each party, and been sufficiently advised in the premises, finds as follows:
On or about August 22, 2008, the Plaintiff was involved in an automobile accident in which she sustained injuries. Subsequently, the Plaintiff received medical treatment at Professional Medical Building Group. Soon thereafter, Professional Medical Building Group submitted its bills to the Defendant seeking reimbursement for the Personal Injury Protection (PIP) benefits under the subject policy. As reflected per the Defendant’s Explanation of Reviews, which were provided and authenticated by Defendant’s Adjuster at his deposition on December 29, 2011, payment was tendered pursuant to Florida Statute 627.736(5)(a)(2)f. Specifically, the bills were reimbursed pursuant to the Participating Level of the Medicare Part B fee schedule and the Workers Compensation fee schedule. As such, the Plaintiff filed a Complaint against the Defendant in connection with a claim for failure to pay proper Personal Injury Protection benefits.
On or about July 11, 2016, the Defendant served the Plaintiff with a Subpoena for Deposition Duces Tecum for the Plaintiff, Augusta Perez. In response, the Plaintiff filed its Motion for Protective Order regarding said deposition which is before the Court.
The Plaintiff argues that the deposition of the Plaintiff is irrelevant as to the issues framed by the pleadings. The Plaintiff’s position is based on the facts that the only issue for this Court to consider is whether the Defendant provided clear and adequate notice to its insured as to its intention to tender reimbursement to the permissive payment methodology.
The Defendant’s Explanation of Review indicate that the Defendant tendered payment pursuant to the permissive payment methodology of the 2008 version of the Florida Motor Vehicle No Fault Law (Fla. Stat. §627.736). Furthermore, as per Defendant’s Answer and Affirmative Defenses, “All of Plaintiff’s bills were paid in accordance to 80% of 200% of the allowable amount under the participating fee schedule of Medicare Part B or, if such services, supplied or care are not reimbursable under Medicare Part B, were paid at 80% of the maximum reimbursable allowance under worker’s compensation in accordance with Fla. Stat. § 627.736(5)(a)(2)(f) and the policy terms and conditions.” The fact that Defendant has withdrawn said defense has no bearing on the Court’s rationale.
The Court finds that once an insurer has attempted to limit reimbursement pursuant to the permissive methodology set forth in Fla. Stat. §627.736(5)(a)(2)f, the primary question to be determined is whether the policy provides sufficient notice to its insured, which is why the deposition of the Plaintiff for purposes of inquiring into reasonableness is improper. See Gladys Barroso v. State Farm Mut. Auto. Serv.; 24 Fla. L. Weekly Supp. 159a; Fla. Hosp. Med. Ctr. aao Sharon Holness v. State Farm Mut. Auto. Serv., 23 Fla. L. Weekly Supp. 351a; Fla. Hosp. Med. Ctr. aao Fabiola Barrick v. State Farm Mut Auto. Serv., 23 Fla. L. Weekly Supp. 262a; Fla. Hosp. Med. Ctr. aao Madge Forsythe v. State Farm Mut. Auto. Serv., FLWSUPP 2309MFOR [23 Fla. L. Weekly Supp. 945b]. However, this Court finds that the Defendant may depose the Plaintiff to verify that the services at issue were in fact provided to the Plaintiff.
Therefore, it is ORDERED and ADJUDGED that Plaintiff’s Motion for Protective Order is hereby GRANTED IN PART. The Defendant may depose the Plaintiff only to confirm that the services at issue were rendered.
