24 Fla. L. Weekly Supp. 58a

Online Reference: FLWSUPP 2401HIGHInsurance — Personal injury protection — Coverage — Emergency services — Deductible — Where insurer received bills from other medical providers prior to bill from plaintiff emergency service provider, insurer should have applied deductible to other providers’ bills, thereby extinguishing deductible before payment of plaintiff’s bill — No merit to argument that because insurer is mandated by statute to reserve $5,000 for emergency service providers deductible was properly applied to plaintiff’s bill as “first compensable bill” even though plaintiff’s bill was third bill received — Insurer cannot dispute reasonableness of charge or relatedness and medical necessity of services after it allowed full amount of charge when applying charge to deductible and conceded reasonableness, relatedness and necessity at deposition of its corporate representative — Standing — Assignment — Document assigning insured’s rights, benefits and causes of action to plaintiff provider conferred standing on plaintiff

EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C., as assignee of Kayla High, Plaintiff, v. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2015 20433 CONS. February 2, 2016. Shirley A. Green, Judge. Counsel: Rutledge M. Bradford, Bradford Cederberg, P.A., Orlando, for Plaintiff. John E. Eckard, II, Roig Lawyers, Orlando, for Defendant.

ORDER GRANTING PLAINTIFF’S MOTIONFOR FINAL SUMMARY JUDGMENT AND DENYINGDEFENDANT’S MOTION FOR FULL ANDFINAL SUMMARY JUDGMENT

THIS MATTER having come before this Honorable Court on Plaintiff’s Motion for Final Summary Judgment and Defendant’s Motion for Full and Final Summary Judgment and this Honorable Court having heard arguments of counsel on December 30, 2015 and being otherwise fully advised in the premises, states as follows:

I. FACTS

This is a claim for Personal Injury Protection benefits (hereinafter “PIP”) arising out of a motor vehicle collision that occurred on or about October 30, 2014. The Plaintiff in this matter is EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C., as assignee of Kayla High (hereinafter “Plaintiff”). At all times material to the subject cause of action, the assignor, Kayla High, was covered under a policy of automobile insurance by the Defendant, GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY (hereinafter “Defendant”) which provided Personal Injury Protection coverage (“PIP”) for injuries Kayla High sustained in the above-referenced accident. The Plaintiff rendered emergency service and care to the assignor, Kayla High, on October 31, 2014, in the Emergency Department of St. Joseph’s Hospital following the above referenced collision. On October 31, 2014, EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C. (“EMATB”) obtained an assignment of benefits from Kayla High in consideration and in exchange for the emergency services and care provided by EMATB to Kayla High on October 31, 2014.

The chronological order of Defendant’s receipt of the medical bills for the medical services rendered to Kayla High as a result of the October 30, 2014 loss at issue is undisputed. The first medical bill that Defendant received for payment under Kayla High’s PIP coverage for the subject automobile accident was from SDI Diagnostic Imaging in the amount of $40.00 which was received by Defendant on November 8, 2014. Defendant allowed SDI Diagnostic Imaging’s bill in full ($40.00) and applied $40.00 of an alleged PIP deductible to SDI Diagnostic Imaging’s bill. Defendant alleges that the policy of automobile insurance at issue included a PIP deductible in the amount of $1,000.00 and that the PIP deductible was applicable to the claim of Kayla High. The Plaintiff disputes this and argues the policy of automobile insurance at issue did not include a PIP deductible and argues no PIP deductible should have been applied to the claim of Kayla High surrounding the loss of October 30, 2014.

The second medical bill that Defendant received for payment under Kayla High’s PIP coverage for the subject automobile accident was from St. Joseph’s Hospital in the amount of $4,042.13 which was received by Defendant on November 14, 2014. Defendant reduced St. Joseph’s Hospital bill to $3,031.61 and after said reduction applied only $449.00 of the alleged deductible to St. Joseph’s Hospital’s bill. Following the application of the alleged deductible, Defendant paid $2,066.09 of St. Joseph’s Hospital’s bill.

The third medical bill that Defendant received for payment under Kayla High’s PIP coverage for the subject automobile accident was from Plaintiff for the date of service at issue (October 31, 2014) in the amount of $383.00. Plaintiff’s bill was received by Defendant on November 19, 2014. Defendant allowed Plaintiff’s bill in full ($383.00) and applied $383.00 of the alleged PIP deductible to Plaintiff’s bill.

The fourth medical bill that Defendant received for payment under Kayla High’s PIP coverage for the subject automobile accident was from SDI Diagnostic Imaging in the amount of $44.00 which was received by Defendant on November 20, 2014. Defendant allowed SDI Diagnostic Imaging’s $44.00 bill in full ($44.00) and applied $44.00 of the alleged PIP deductible to SDI Diagnostic Imaging’s $44.00 bill.

The fifth medical bill that Defendant received for payment under Kayla High’s PIP coverage for the subject automobile accident was from SDI Diagnostic Imaging in the amount of $84.00 which was received by Defendant on November 20, 2014. Defendant allowed SDI Diagnostic Imaging’s $84.00 bill in full ($84.00) and applied $84.00 of the alleged PIP deductible to SDI Diagnostic Imaging’s $84.00 bill.

II. ISSUES TO BE DETERMINED BY THE COURT

The issues presented by the parties for determination by this Court on competing motions for final summary judgment are as follows: 1) whether Defendant improperly processed medical bills by applying an alleged PIP deductible to said medical bills out of order of receipt in derogation of Fla. Stat. §627.736 and Fla. Stat. §627.739; 2) whether relatedness and necessity of the services provided to Kayla High by Plaintiff as well as reasonableness of Plaintiff’s charges are resolved; and 3) whether the assignment of benefits executed by Kayla High on October 31, 2014 in favor of EMATB conferred standing upon EMATB to file the present lawsuit and maintain this action.

III. ANALYSIS AND RULING

A. Defendant Improperly Processed Medical Bills by Applying an Alleged PIP Deductible to Said Medical Bills Out of Order of Receipt in Derogation of Fla. Stat. §627.736 and Fla. Stat. §627.739

It is Defendant’s position and Defendant argues that even though Plaintiff’s bill was the third bill received by Defendant, Plaintiff’s bill must be moved to the “front of the line” as “the first compensable bill.” Defendant concedes that Plaintiff’s bill meets the protection afforded pursuant to Fla. Stat. § 627.736(4)(c) but Defendant argues that as a result of said protection, Plaintiff’s bill was applied to the deductible as “the first compensable bill.” Defendant argues that Defendant was permitted to apply the alleged deductible to Plaintiff’s bill out of order instead of applying the remaining alleged deductible to the second bill received (St. Joseph’s Hospital’s bill) which would have extinguished any alleged deductible. It is Plaintiff’s position that Defendant should not have applied any alleged PIP deductible to Plaintiff’s bill and Defendant breached the contract at issue considering 1) Defendant’s violation of Fla. Stat. §627.736 which requires application of a PIP deductible to a loss (i.e., medical bill) as loss accrues (i.e., order of receipt), 2) Defendant’s violation of Fla. Stat. §627.739(2) which requires application of a PIP deductible to 100% of expenses, 3) there was no PIP deductible associated with the policy of insurance at issue, and 4) there was no PIP deductible applicable to the PIP coverage of Kayla High surrounding the loss of October 30, 2014. The Court finds Defendant’s argument without merit and finds Plaintiff’s argument fundamentally sound and directly in line with the law.

The bill from St. Joseph’s Hospital was clearly determined by Defendant to be compensable as Defendant paid $2,066.09 of St. Joseph’s Hospital’s bill. To further solidify this fact, in deposition the Defendant’s Corporate Representative testified that St. Joseph’s Hospital’s bill was compensable. Therefore, Defendant’s argument that Plaintiff’s bill was the “first compensable bill” is directly contrary to the actions taken by Defendant and the record evidence in this matter. Plaintiff’s bill was the third compensable bill received by Defendant. As a result, Plaintiff’s bill should not, and could not, be applied to any alleged deductible.

Fla. Stat. §627.736(4) reads in pertinent part that “[b]enefits due from an insurer . . . are due and payable as loss accrues upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued . . .” Defendant in the present matter received reasonable proof of two covered losses and the amounts of expenses incurred for same prior to Defendant receiving Plaintiff’s bill. Further, Fla. Stat. §627.739(2) reads in pertinent part that “[t]he deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736.” Pursuant to Fla. Stat. §§627.736(4) and §627.739(2), Defendant was required to process the bill from St. Joseph’s Hospital prior to the Plaintiff’s bill. If Defendant had processed the St. Joseph’s Hospital bill properly, no alleged deductible would have been available under any circumstances for application to Plaintiff’s bill. However, Defendant did not process the medical bills in compliance with Fla. Stat. §§627.736(4) and §627.739(2), thereby breaching the contract at issue. As stated by Courts of this State, “those medical bills which were received first, are to be applied to the deductible when received.” Dr. Garrett R. Weinstein, D.C., P.A. a/a/o Devonte St. Louis v. United Auto. Ins. Co., 18 Fla. L. Weekly Supp. 480b (Fla. 17th Jud. Cir., Broward Co., March 11, 2011).

Under Fla. Stat. §627.736(4)(c), only $5,000.00 of the $10,000.00 in PIP benefits are to be reserved and held for payment to providers of emergency services and care who are licensed under chapter 458, 459 or 466 and who submit their bills within thirty (30) days of the carrier receiving notice of loss (EMATB qualifies for this reservation for payment mandate). However, the other $5,000.00 in PIP benefits is available immediately for processing of medical bills from non-protected providers (i.e., the St. Joseph’s Hospital bill in this matter). This Court finds that Defendant should have applied the remaining deductible to the second bill received (the unprotected St. Joseph’s Hospital bill) which would have without question extinguished any alleged PIP deductible.

Plaintiff also argues that there was no PIP deductible associated with the policy of insurance at issue as Defendant did not comply with the strict requirements of Fla. Stat. §627.739. Plaintiff argues that Defendant has failed to present this Court with any evidence as to the insurer’s offer of deductible options to its insured, premium reduction notice, or election of the deductible by the insured. Plaintiff argues that Defendant is required to present evidence of the PIP deductible election by the insured and the amount of same or no deductible can be deemed associated with the policy. In addition, it is Plaintiff’s position that in order for Defendant to limit coverage, meaning apply a PIP deductible, Defendant must affirmatively prove that its insured elected a PIP deductible and affirmatively prove the amount of same. In support of its position, Plaintiff points to the clear similarities between Fla. Stat. §627.727 (election of uninsured motorist coverage) and Fla. Stat. §627.739 (election of personal injury protection deductibles), for the proposition that it is the affirmative duty of the insurer to prove that it has complied with the law and obtained a PIP deductible election form. Interestingly, in the case at hand, the only deductible election form in the record is a blank, unchecked, unsigned election form attached as an exhibit to the deposition of Defendant’s Corporate Representative. Also of note, Defendant’s Third Affirmative Defense in this matter indicates that the alleged deductible is $500.00, however Defendant’s Motion for Full and Final Summary Judgment alleges that the deductible is $1,000.00. The Court does not even have to determine whether a PIP deductible actually existed on the policy at issue or whether a PIP deductible was applicable to the claim of Kayla High or Plaintiff’s bill because as discussed above, under no circumstances or argument presented could a PIP deductible be applied to Plaintiff’s bill at issue.

B. Relatedness and Necessity of the Services Provided to Kayla High by Plaintiff as well as Reasonableness of Plaintiff’s Charges are Resolved

It is the Defendant’s position that although it allowed Plaintiff’s charges in full and applied the full amount of Plaintiff’s bill to the alleged deductible, it can nonetheless continue to challenge the causal relatedness and medical necessity of the services provided by the Plaintiff to Kayla High and the reasonableness of Plaintiff’s charges for those services. It is Plaintiff’s position that Defendant’s actions in this claim dictate that these items are no longer at issue and are resolved. In support of its position, Plaintiff argues that Defendant 1) originally plead relatedness of the services, necessity of the services and reasonableness of Plaintiff’s charge as its Fifth [sic] affirmative defense but withdrew said defense during the deposition of Defendant’s Corporate Representative, 2) during the deposition of Defendant’s Corporate Representative it was confirmed that the services were related and necessary and that the Plaintiff’s charges were reasonable, and 3) clearly deemed the services to be causally related and medically necessary and Plaintiff’s charges to be reasonable as Defendant allowed Plaintiff’s bill in full (deeming the full amount of Plaintiff’s bill to be the “Reimbursement Amount” according to Defendant’s own Explanation of Reimbursement) and applied the entire amount of said bill to the alleged deductible. The Court finds Defendant’s argument without merit and finds Plaintiff’s argument fundamentally sound and directly in line with the law.

Defendant’s argument that Plaintiff’s burden has yet to be met in regards to the reasonableness of the Plaintiff’s charge as well as the relatedness and medical necessity of the services is in direct conflict with the record before this Court. First and foremost, Defendant’s Explanation of Reimbursement shows the charged amount of $383.00 for Plaintiff’s bill was allowed in full. Defendant’s Explanation of Reimbursement uses the term “Reimbursement Amount” to represent the allowed amount of $383.00, prior to application of the deductible and makes no mention of the Defendant challenging the reasonableness of the Plaintiff’s charge, causal relatedness or medical necessity of the services. According to General Star Indem. Co. v. West Florida Village Inn., Inc. “[t]he notion that a deductible could be applied to loss that is not covered by the policy is fundamentally unreasonable.” 874 So. 2d 26 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1070b]. PIP benefits are to cover reasonable, related and medically necessary services and when Defendant applied the deductible (albeit improperly) to Plaintiff’s bill it made the determination that the charged amount was reasonable and that the services were causally related and medically necessary. Additionally, during the deposition testimony of Defendant’s Corporate Representative it was conceded that the services were related and necessary in regard to the automobile accident of the patient/insured and the charge was reasonable. In fact, the Defendant’s Corporate Representative conceded that had Plaintiff’s bill not been applied to the deductible it would have been paid. If an insurer applies a deductible to a medical provider bill said services are “deemed medically necessary, and related to the accident.” Glenn V. Quintana, D.C., P.A. (a/a/o Melissa N. Evans) v. State Farm Mutual Automobile Insurance Company, 19 Fla. L. Weekly Supp. 882a (Fla. 11th Jud. Cir., Miami-Dade Co., July 11, 2012). Within its Motion for Full and Final Summary Judgment and in argument at the hearing, Defendant uses the phrase “compensable” to describe Plaintiff’s bill for the emergency services and care rendered to Kayla High. As a result, Defendant via its own argument has conceded to the compensability of Plaintiff’s bill. “In order for a claim to be compensable, it must be reasonable, related, and medically necessary.” United Auto. Ins. Co. v. Riverside Medical Assoc., 20 Fla. L. Weekly Supp. 389a (Fla. 17th Jud. Cir., Appellate, December 13, 2012). When applied to a deductible and therefore found to be compensable, “bills cannot thereafter be ‘un-applied’ from said deductible.” Dr. Garrett R. Weinstein, D.C., P.A. a/a/o Devonte St. Louis v. United Auto. Ins. Co., 18 Fla. L. Weekly Supp. 480b (Fla. 17th Jud. Cir., Broward Co., March 11, 2011). Via Defendant’s actions and the record evidence before the Court, the services provided to Kayla High by Plaintiff were related and necessary and the Plaintiff’s charge reasonable.

C. The Assignment of Benefits Executed by Kayla High on October 31, 2014 In Favor of EMATB Conferred Standing Upon EMATB to File the Present Lawsuit and Maintain This Action

Defendant argues that the assignment of benefits at issue in this matter does not confer standing upon EMATB because EMATB is not the “Facility” (St. Joseph’s Hospital) and that EMATB is not mentioned specifically within the assignment. EMATB argues that EMATB (the emergency physicians who rendered emergency services and care to Kayla High in the Emergency Room at St. Joseph’s Hospital) undisputably meets the definition of “Provider” within the assignment. Specifically, paragraph number three (3.) of the assignment defines “Provider” in part as the “emergency physicians” (i.e., EMATB). Paragraph seventeen (17.) (entitled “ASSIGNMENT OF BENEFITS”) of the document clearly assigns all Kayla High’s “rights, benefits, privileges, protections, claims, causes of action, interests or recovery” under the policy at issue to EMATB, a defined “Provider.” Paragraph seventeen (17.) further states that “[t]his includes, without limitation, . . . personal injury protection.” The Court agrees that paragraph seventeen (17.) of the assignment at issue clearly distinguishes between “Facility” and “Provider” and that the document clearly assigns Kayla High’s benefits under the policy to the “Facility” for the services provided by the “Facility” and to the “Provider” (EMATB) for services provided by EMATB.

A review of Florida law on the topic of assignments confirms that there are no express requirements that an assignment contain any particular words or terms. Assignments may be express or implied by the circumstances. Tunno v. Robert, 16 Fla. 738 (Fla. 1878); Mangum v. Susser, 764 So.2d 653 (Fla. 1st DCA 2000) [25 Fla. L. Weekly D1216a]. An assignment may be partly in writing, partly parol or it may be by a showing of circumstances in which the debtor is justified in making payment, regardless of whether there is anything in writing or in parol between the assignor and assignee. Protection House, Inc. v. Daverman and Associates, 167 So.2d 65 (Fla. 3rd DCA 1964). The law is clear that a valid equitable assignment exists where it is necessary to effectuate the plain intent of the parties or where to hold otherwise would be just. See Giles v. Sun Bank, NA, 450 So.2d 258 (Fla. 5th DCA 1984). No particular words or form of instrument is necessary to effect an equitable assignment, and any language, however informal, which shows an intention on one side to assign a right and an intention on the other side to receive it, if there is valuable consideration, will operate as an effective assignment. Id. See also, Bou