24 Fla. L. Weekly Supp. 366a

Online Reference: FLWSUPP 2405MCDOInsurance — 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 has not determined that insured suffered emergency medical condition at time suit was filed — Where provider ignored insurer’s requests for information regarding whether emergency medical condition existed, claims never became overdue and demand letter was premature — Confession of judgment — Insurer’s payment of benefits above $2,500 upon receipt of determination of emergency medical condition during litigation is not confession of judgment where insurer did not wrongfully withhold payment and premature suit was not catalyst for payment

COLUMNA, INC. a/a/o Sharon McDonald, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502015SC007767XXXXMB, Division RL. May 31, 2016. Robert Panse, Judge. Counsel: Tara L. Kopp, Schuler, Halvorson, Weisser, Zoeller & Overbeck, PA, West Palm Beach, for Plaintiff. Scott W. Dutton, Dutton Law Group, P.A., Tampa, for Defendant.

FINAL JUDGMENT FOR DEFENDANT

GRANTING DEFENDANT’S MOTION FOR SUMMARY

JUDGMENTAND DENYING PLAINTIFF’S

MOTION FOR SUMMARY JUDGMENTThis matter came before the Court for hearing on May 16, 2016 on Defendant USAA CASUALTY INSURANCE COMPANY’S Motion for Summary Judgment Regarding Emergency Medical Condition, Failure to Respond to Request for Information and Premature Demand Letter, and on Plaintiff COLUMNA, INC.’S Motion for Summary Judgment on Confession of Judgment. The Court, having read the submissions by the parties, having heard argument of counsel and being otherwise duly advised in the premises, makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. The subject action involves a claim for personal injury protection insurance benefits filed by Plaintiff, COLUMNA, INC. (hereinafter “Plaintiff”) as assignee of Sharon McDonald (hereinafter “Claimant”) against Defendant, USAA CASUALTY INSURANCE COMPANY (hereinafter “Defendant”), arising out of a motor-vehicle accident that occurred on February 18, 2014.

2. Plaintiff submitted its bills for charges for treatment of Claimant, accompanied by medical records, for dates of service from February 26, 2014 through August 20, 2014.

3. Defendant responded to each and every one of the bills at issue with an Explanation of Reimbursement, advising Plaintiff that the total reimbursement had been limited to $2500, in accordance with § 627.736(a)3 & 4, Fla. Stat., because the patient had not been determined to have an “emergency medical condition” (“EMC”) as that term is used in the Florida No-Fault Law.

4. Defendant stated in each Explanation of Reimbursement:

Per F.S.A. 627.736(1)(a)4, $2500.00 has been reimbursed. In order to make any additional reimbursement decisions, please provide the determination of the patient’s emergency medical condition by a provider authorized in 627.736(1)(a)3 & 4. This is a written request pursuant to F.S.A. 627.736(6)(b).

5. Plaintiff served a pre-suit demand on October 24, 2014.

6. Defendant responded to the pre-suit demand as follows:

Per F.S.A. 627.736(1)(a)4, $2500.00 has been paid under the Personal Injury Protection coverage for the above mentioned patient and date of loss. In order to make any additional reimbursement decisions, documentation is needed regarding the determination of the patient’s emergency medical condition by a provider authorized in 627.736(1)(a)3 & 4. At this time USAA is unable to consider any additional payments for this patient unless an authorized provider determines that the patient suffered an emergency medical condition.

7. Plaintiff filed this lawsuit on December 12, 2014 contesting Defendant’s adjustment of the claim.

8. No medical provider authorized in § 627.736(1)(a)3, including Plaintiff, submitted an emergency medical condition determination prior to the service of Plaintiff’s demand letter or prior to filing suit.

9. Almost a year after the lawsuit was filed, on September 1, 2015 Defendant received a determination of an emergency medical condition authored by Plaintiff.

10. Thereafter, on September 3, 2015, Defendant issued additional payments to Plaintiff.

11. Defendant moved for summary judgment urging this Court that nothing was due when suit was filed, and that summary judgment should be entered in its favor.

12. Plaintiff, in turn, moved for summary judgment arguing that the post suit payments constituted a confession of judgment.

13. Based on these facts, this Court has determined that Defendant’s motion for summary judgment should be granted, and that Plaintiff’s motion for summary judgment should be denied.

CONCLUSIONS OF LAW

A. EMERGENCY MEDICAL CONDITION

14. The language in the most recent version of the Florida Motor Vehicle No-Fault Law is materially different from prior versions. Previously, payment of up to $10,000.00 in medical benefits was available for injuries without regard to their severity.

15. However, § 627.736(1)(a), Fla. Stat. (2013) added language that benefits were limited to “reimbursement only for” services as specified, and added subparagraphs 3 and 4 relating to payments when a claimant had or did not have an emergency medical condition (emphasis added):

(a) Medical benefits. Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services. . . . The medical benefits provide reimbursement only for:

1. Initial services and care [by a listed provider]. . . .

2. . . .followup services and care [by a listed provider]. . . .

3. Reimbursement for services and care provided in subparagraph 1. or subparagraph 2. up to $10,000 if [a listed medical professional] has determined that the injured person had an emergency medical condition.

4. Reimbursement for services and care provided in subparagraph 1. or subparagraph 2. is limited to $2,500 if a provider listed in subparagraph 1. or subparagraph 2. determines that the injured person did not have an emergency medical condition.¹

§ 627.736(1)(a), Fla. Stat. (2013) (emphasis added).

16. As to the event triggering this reimbursement, § 627.736(4)(b) requires payment only after “written notice of the fact of a covered loss and the amount of same.” Since it is the determination of an EMC that gives rise to the entitlement to reimbursement above $2500.00, it follows that the statute requires written notice to the insurer of a qualified provider’s determination that the claimant had an emergency medical condition before more than $2500.00 in benefits can become available.

17. This Court is aware that there are many courts throughout the state that have agreed that EMC benefits (up to $10,000) are only available where a written determination of an EMC has been provided to the insurer by a statutorily authorized medical provider. This Court agrees that this is the only reasonable interpretation of the statute that accomplishes the evident legislative purpose.

18. Courts must adhere to the reasonable and obvious meaning of a statute’s plain language over a meaning that would lead to an absurd result. See Tampa-Hillsborough County Expressway Auth. v. K.E. Morris Alignment Serv., Inc., 444 So. 2d 926, 929 (Fla. 1983) (reversing the interpretation a district court gave to a statute regarding compensation to business owners in the event of an exercise of eminent domain, finding that the interpretation would easily lead to absurd and unfair results) (“[A]n interpretation of the language of a statute that leads to absurd consequences should not be adopted when, considered as a whole, the statute is fairly subject to another construction that will aid in accomplishing the manifest intent and the purposes designed”).

19. Here, the interpretation of limiting reimbursement to $2500 until an emergency medical condition determination is received by the insurer as advocated by Defendant is the only reasonable and workable result suggested by the plain language of the statute, read as a whole.

20. The statute clearly imposes the burden of determining that an EMC exists on the provider by listing specific medical professionals who are authorized to make this determination. Moreover, the statute cannot place the burden of an EMC determination on the insurer, since its employees are claims handlers, not the listed medical professionals. It is the provider that is the medical professional authorized by statute to make this determination; an adjuster cannot make this determination.

21. As of the time this suit was filed, Plaintiff had not provided notice that a specified provider had determined that the claimant had an EMC, nor had any other provider. The claimant’s medical records did not contain a clear determination, even though Plaintiff has argued that a medical analysis of those records would lead to such a conclusion. As a result, the benefits under the Policy were legally limited to $2,500.00. Since the $2,500.00 limit had been paid out, Defendant had no additional liability to Plaintiff when this case was filed. See Simon v. Progressive Exp. Ins. Co., 904 So. 2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]; Progressive Am. Ins. Co. v. Stand-Up MRI of Orlando, 990 So. 2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a], and Sheldon v. United Services Auto. Ass’n, 55 So. 3d 593 (Fla. 1st DCA 2010) [36 Fla. L. Weekly D23a].

B. REQUEST FOR INFORMATION UNDER § 627.736(6)(b), Fla. Stat.

22. The PIP statute also gives the insurer mechanisms for finding out whether an EMC exists. § 627.736(6)(b), Fla. Stat. (2013) provides one method of investigation by an insurance carrier of a claimant’s medical condition. Specifically, that subsection states in pertinent part:

Every physician . . . providing, before or after bodily injury upon which a claim for personal injury protection insurance benefits is based, any products, services, or accommodations in relation to that or any other injury, or in relation to a condition claimed to be connected with that or any other injury, shall, if requested by the insurer against whom the claim has been made, furnish a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why the items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement that the treatment or services rendered were reasonable and necessary with respect to the bodily injury sustained and identifying which portion of the expenses for such treatment or services was incurred as a result of such bodily injury, and produce, and allow the inspection and copying of, his or her or its records regarding such history, condition, treatment, dates, and costs of treatment if this does not limit the introduction of evidence at trial. Such sworn statement must read as follows: “Under penalty of perjury, I declare that I have read the foregoing and the facts alleged are true, to the best of my knowledge and belief.”

§ 627.736(6)(b), Fla. Stat. (2013) (emphasis added).

23. According to the subsection, “if an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under subparagraph (4)(a), the amount or the partial amount that is the subject of the insurer’s inquiry is overdue if the insurer does not pay in accordance with subparagraph (4)(b), which provides that payment is “overdue if not paid within 30 days after written notice is furnished to the insurer” or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later.” § 627.736(6)(b), Fla. Stat. (2013).

24. In other words, upon a proper request from the insurer, subsection (6)(b) requires a provider to furnish certain documentation or information in order to recover for its claim, and payment does not become due unless and until the requested information is provided. See Kaminester v. State Farm Mut. Auto. Ins. Co., 775 So. 2d 981 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2705a]; State Farm Mut. Auto. Ins. Co. v. Goldstein, 798 So. 2d 807 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2541a]; MRI Services, Inc. v. State Farm Mut. Auto. Ins. Co., 807 So. 2d 783 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D458b].

25. The Court finds, as a matter of law, that valid requests for information, specifically, whether or not an EMC existed, were made by Defendant to Plaintiff, and that these requests were ignored.

26. Thus, under § 627.736(6)(b), payment could never have been due, because it would only become “overdue if the insurer if the insurer does not pay in accordance with paragraph (4)(b) or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later.” Since the requested documentation was never provided, the claims never became overdue.

C. PREMATURE DEMAND LETTER

27. § 627.736(10)(a), Fla. Stat. states that “[a]s a condition precedent to filing any action for benefits under this section, written notice of an intent to initiate litigation must be provided to the insurer.” According to the statute, the notice must state that it is a “demand letter” pursuant to § 627.736(10), Fla. Stat. and must state with specificity:

1. The name of the insured upon which such benefits are being sought, including a copy of the assignment giving rights to the claimant if the claimant is not the insured.

2. The claim number or policy number upon which such claim was originally submitted to the insurer.

3. To the extent applicable, the name of any medical provider who rendered to an insured the treatment, services, accommodations, or supplies that form the basis of such claim; and an itemized statement specifying each exact amount, the date of treatment, service, or accommodation, and the type of benefit claimed to be due. . . .

§ 627.736(10)(b), Fla. Stat.

28. As to timing, “such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).” § 627.736(10)(a), Fla. Stat. (emphasis added). Thus, in order to proceed with an action for benefits under the Florida Motor Vehicle No-Fault Law, a claim must be overdue, including failure to pay ten days after the receipt of any information requested under § 627.736(6)(b), Fla. Stat.

29. As established above, Plaintiff’s claim for benefits was never overdue. As such, its purported demand letter clearly was premature. See MRI Associates of Am., LLC v. State Farm Fire & Cas. Co., 61 So. 3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b].

D. CONFESSION OF JUDGMENT

30. Finally, Plaintiff argues in its motion for summary judgment that whatever the merits of its case, Defendant has nonetheless confessed judgment, by making payment of the amounts claimed by Plaintiff after the filing of this suit. Plaintiff is wrong.

31. Courts have long recognized that a “confession of judgment” does not result in every case in which insurance company pays a claim during active litigation. See State Farm Florida Ins. Co. v. Lorenzo, 969 So. 2d 393, 398 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D1791e] (emphasis added). Instead, the “confession of judgment” rule has “consistently been interpreted to authorize recovery . . . only when the insurer has wrongfully withheld payment of the proceeds of the policy,” and later changed its position as a result of litigation. Id. Stated differently, “the question of whether an insurer’s post-suit payment. . . constitutes a confession of judgment will be determined based on whether the filing of the suit acted as a necessary catalyst to resolve the dispute and force the insurer to satisfy its obligations under the insurance contract.” Clifton v. United Cas. Ins. Co. of Am., 31 So. 3d 826, 829 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D364e]. Accord, Tristar Lodging, Inc. v. Arch Specialty Ins. Co., 434 F. Supp. 2d 1286 (M.D. Fla. 2006) aff’d sub nom. Tristar Lodging, Inc. v. Arch Specialty Ins. Co., 215 Fed. Appx. 879 (11th Cir. 2007).

32. In this case, Defendant has never changed its position that it was entitled to receive a determination of an EMC from an authorized provider before becoming liable to pay any charges above $2500.00.

33. Consistent with that position, when Defendant did finally receive such a determination (after suit had been filed), it timely paid the charges due. Plaintiff did not have to file suit to obtain the benefits it sought. Rather, it simply had to provide the determination of an EMC, which it eventually did. Defendant cannot be charged with a confession where it did nothing wrong, and made payment for any charges consistent with its correct interpretation of the law. The elements of confession are simply not present.

34. Defendant did not wrongly withhold payment, and the suit was not any sort of catalyst to force Defendant to make payment. Rather, Defendant made payment when the conditions precedent had been satisfied. This is not a confession of judgment.

CONCLUSION

When Plaintiff submitted its charges to Defendant, Defendant properly adjusted its claim — limiting payment to $2,500.00 until a determination of an EMC was forthcoming. Once the $2500.00 reimbursement ceiling was reached, in accordance with applicable law, Defendant requested documentation or information, pursuant to § 627.736(6)(b), Fla. Stat., whether Claimant had been determined to have an emergency medical condition. Plaintiff did not respond.

Instead of providing the requested information, Plaintiff served a presuit demand. The pre-suit demand was premature because nothing was due or overdue when it was served.

Once Defendant was provided with an emergency medical condition determination, it made timely payment of the charges it had received. This payment did not result in a confession of judgment because Defendant did not wrongfully withhold benefits, Plaintiff’s claim was never overdue, and its premature lawsuit was not the catalyst for payment.

It is therefore

ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment be and hereby is, GRANTED;

ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment be and hereby is, DENIED; and

ORDERED AND ADJUDGED that judgment be and hereby is entered for Defendant, that Plaintiff take nothing by this action and that Defendant go hence without day.

The Court reserves jurisdiction to determine attorney’s fees and costs.

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¹An emergency medical condition is defined as “a medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in . . . (a) serious jeopardy to patient health, (b) serious impairment to bodily functions, [or] (c) serious dysfunction of any bodily organ or part. See § 627.732(16), Fla. Stat. (2013).