24 Fla. L. Weekly Supp. 373a
Online Reference: FLWSUPP 2405CEREInsurance — Personal injury protection — Coverage — Emergency medical condition — Under amendments to PIP statute requiring PIP insurer to pay benefits up to $10,000 if qualified medical provider has determined that claimant had emergency medical condition and limiting reimbursement to $2,500 if qualified provider has determined that claimant did not have emergency medical condition, insurer properly limited benefits to $2,500 where qualified provider had not determined that insured suffered emergency medical condition — No merit to argument that insurer was required to pay benefits up to $10,000 unless there was determination of absence of emergency medical condition — Where medical provider first provided insurer with documentation potentially establishing existence of emergency medical condition after provider had filed suit for benefits above $2,500 limitation, documentation was legally insufficient to establish emergency medical condition — Insurer did not have duty to investigate whether insured had emergency medical condition or to request additional information from provider prior to limiting benefits to $2,500
BOFSHEVER WELLNESS CENTER, LLC a/a/o Ruth Cereste, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. CONO14005737 (70). March 10, 2016. John D. Fry, Judge. Counsel: Abraham S. Ovadia, Florida PIP Law Firm, P.A., Boca Raton, for Plaintiff. Randall B. Bishop, Progressive PIP House Counsel, Fort Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT REGARDINGEMERGENCY MEDICAL CONDITION
THIS CAUSE having come before the Court on February 18, 2016, 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 case law presented, heard argument of counsel, and being otherwise advised in the premises, it is hereupon,
ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment be, and that same is hereby GRANTED.
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 sections 627.736(1)(a)(3)-(4), Fla. Stat., entitles same to reimbursement from Defendant of up to $10,000, unless a listed provider makes a determination that the claimant did not suffer an emergency medical condition. The Court disagrees with the Plaintiff. Such an interpretation is not supported by the plain language of the law or the well-established constraints of statutory construction.
It is undisputed at this point, and the Defendant even stipulates, that services were provided to the Plaintiff in the case at bar. The Court has not heard otherwise, so, therefore, must believe 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 in response to Plaintiff’s demand letter, stated that a qualified physician has not determined that the injured person had an emergency medical condition; as such the available medical benefits are limited to $2,500.
At some point in the proceedings, the Defendant filed a Motion for Final Summary Judgment against the Plaintiff. The Plaintiff produced, via affidavit, 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 November 24, 2015. Defendant was served with suit in this matter on June 2, 2014. 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 in this matter. The documentation Plaintiff provided, after initiating litigation, to potentially establish an emergency medical condition was the first written notice provided to the Defendant that Ruth Cereste had potentially suffered an emergency medical condition.
In the instant action, Defendant was not put a notice of an emergency medical condition until well into litigation. Plaintiff has an obligation to establish a legal right to entitlement to $10,000 in personal injury protection benefits prior to initiating litigation. In this case, Plaintiff should have provided Defendant with documentation of an emergency medical condition after receiving Defendant’s response to Plaintiff’s Demand Letter, and before filing suit.
The Court rejects Plaintiff’s position that Defendant had a duty to investigate whether the Plaintiff possessed documentation indicating that the claimant suffered an emergency medical condition prior to limiting medical benefits to $2,500. A duty to investigate is not elicited in Florida Statute 627.736, and is nothing more than an attempt by Plaintiff to facially create a layer of obligation for the Defendant that is not enumerated in the aforementioned statute. The Court also rejects Plaintiff’s position that Defendant should have sent out a request for additional information pursuant to Florida Statute 627.736(6)(b). Defendant is under no obligation to solicit additional information from the Plaintiff prior to limiting personal injury protection benefits to $2,500.
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.
