24 Fla. L. Weekly Supp. 487a

Online Reference: FLWSUPP 2407SIMMInsurance — Personal injury protection — Coverage — Medical expenses — Emergency medical condition — Where at time of payment insured had not been diagnosed with emergency medical condition, insurer did not wrongfully withhold payments by limiting benefits to $2500 and explaining to provider that benefits were exhausted — Post-suit payment of remaining balance after provider obtained a positive EMC diagnosis did not amount to confession of judgment — Insurer was not required to propound discovery request under §627.736(6)(b) to toll 30-day time-to-pay period and protect itself from liability for fees

ENTERPRISE LEASING COMPANY, Appellant, v. AFO IMAGING, INC., as assignee of SANTONIO SIMMONS, Appellees. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County, Civil Division X. Case No. 15-CA-5186. L.T. Case No. 13-CC-29576. October 24, 2016. Counsel: Christopher P. Calkin, Tampa, for appellant. David Clark Borucke, Cole, Scott & Kissane, P.A., Tampa, for Appellee.

Cert. Denied 6-16-2017 (Fla. 2DCA, Case No. 2D16-5000)

[Lower court order published at 22 Fla. L. Weekly Supp. 838a.]On Motion for Rehearing

In light of Appellee’s Motion for Rehearing, the Court withdraws its original opinion and substitutes the opinion below. The result is unchanged. [Editor’s note: original opinion not published.]

OPINION

(THOMAS, Judge.) This appeal is before the court at the request of Enterprise Leasing Company (Enterprise) to review the judgment awarding attorney’s fees in favor of AFO Imaging (AFO) based upon Enterprise’s post-suit payment of benefits, which the county court deemed a confession of judgment. Enterprise challenges that conclusion because it did not wrongfully withhold payment. At the time suit was filed, benefits were exhausted at $2500 because the insured was not diagnosed with an emergency medical condition (EMC).¹ When AFO obtained a positive EMC diagnosis after filing suit, Enterprise timely paid the remaining balance. Enterprise contends that the trial court erred when it concluded that $10,000 is the default level of benefits and placed the responsibility on an insurer to determine the absence of an EMC after a claim is filed, rather than on a claimant to demonstrate the presence of an EMC at the time a claim is filed. We agree. The clear legislative intent supports that $2500 is the level of benefits in the absence of an EMC diagnosis, and recent judicial authority agrees. Medical Center of the Palm Beaches, d/b/a Central Palm Beach Physicians & Urgent Care, Inc., a/a/o Carmen Santiago v. USAA Casualty Insurance Company, __ So. 3d __; 2016 WL 4540251; 41 Fla. L. Weekly D2018b (Fla. 4th DCA 2016) (hereinafter Santiago). AFO was required to provide a positive EMC diagnosis with its notice of a covered loss to claim benefits over $2500. The lawsuit was, therefore, premature, and Enterprise’s post-suit payment was not a confession of judgment. In reversing the judgment, we note that the trial court did not have the benefit of the Santiago decision.

Santonio Simmons, the insured, was a passenger in a vehicle rented from Enterprise when it was involved in a minor accident on May 6, 2013. The vehicle was stopped at a traffic signal at the time. Police were called but emergency medical personnel were not. The car was operable and was able to drive away. Simmons did not immediately seek any medical treatment, but a week later on May 13, 2013, he received treatment at Premier Miller Auto Injury Treatment Center. A month later on June 10th he went to Premier a second time. Premier submitted claims to Enterprise, and Enterprise paid 80 percent of the amount claimed in accordance with the law. None of the records submitted by Premier contained a positive EMC determination. A month later on July 10th, AFO provided diagnostic services to Simmons. AFO submitted a claim for $1297 to Enterprise; Enterprise paid $764.72, at which point it believed benefits were exhausted at $2500 under §627.736(1)(a)(4). Had benefits not been exhausted, Enterprise would have paid an additional $272.87 on the claim. Along with its payment of the claim Enterprise advised AFO in writing that benefits were exhausted at $2500 under the statute. The correspondence explained that Enterprise had not received a positive EMC diagnosis.

Premier submitted additional claims after AFO’s claims exhausted the remaining benefits. Enterprise explained to Premier, as it had explained to AFO, that benefits had been exhausted at $2500 in the absence of a positive EMC diagnosis. Premier is not a party to this suit.

In an apparent attempt to present a reasonable basis for its position that no additional benefits were owed, Enterprise retained the services of David A. Libert, M.D. to review Simmons’s record as submitted by Premier.² Dr. Libert determined that Simmons did not suffer from an EMC as defined by §627.732(16). In addition, on August 3, 2013, Enterprise requested Simmons to submit to an independent medical examination (IME) with Dr. Kalman Pila, M.D., who concluded that no further treatment was necessary.

On September 13, 2013, and October 11, 2013, Enterprise responded to demand letters from AFO’s attorney, again explaining the absence of an EMC as required by Enterprise also asked for more information related to the claim. AFO responded by filing the underlying suit on November 5, 2015.³ In its complaint, AFO did not plead the existence of an EMC. On August 27, 2014, nine months after filing the lawsuit, AFO obtained a report from Sean M. Mahan, M.D., who concluded, based on his review of the medical records, that Simmons had suffered an EMC at the time of the accident. Within 30 days of receiving Dr. Mahan’s affidavit, Enterprise paid the additional payment sought by AFO and Premier. Like Dr. Libert, Dr. Mahan did not examine or treat Simmons.

The only issue remaining after all claims were resolved was whether Enterprise had confessed judgment by its post-suit payment, which would entitle AFO to attorney’s fees under §627.428. The trial court awarded AFO $55,000 in fees. This timely appeal followed. We review the court’s determination as to entitlement to fees — a question of law — de novo. Lopez v. State Farm Mutual Automobile Ins. Co., 139 So. 3d 402, 404 (Fla. 3d DCA 2014) [39 Fla. L. Weekly D1058a].

Insurer’s post-suit payment of claims are considered confessions of judgment if the withholding of benefits forced the claimant to file suit. State Farm Insurance Company v. Lime Bay Condominium, Inc., 187 So. 3d 932, 937 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D730a]. Bad faith is not required; wrongful or even mistaken withholding of benefits that force a claimant to file suit will suffice. Johnson v. Omega Ins. Co., 2016 WL 5477795 at *11; No. SC14-2124, (Fla. Sept. 29, 2016) [41 Fla. L. Weekly S415a].⁴ But not every post-judgment payment of benefits is a confession of judgment. Rather, if an insurer had a legitimate reason to withhold payment and later-developed facts cause it to change its position and pay the claim, even after a lawsuit is filed, an insurer is not liable for fees. State Farm v. Lime Bay Condominium, at 937. Enterprise does not now challenge that Simmons suffered an EMC in light of Dr. Mahan’s conclusion, despite negative findings in an IME and peer-review report.⁵ But Enterprise maintains that it did not wrongfully withhold payment where payment on the claims were made within 30 days of receiving the additional information.

This case requires us to construe several subsections of the PIP statute, §627.736, Florida Statutes. All parts of a statute must be read together to achieve a consistent whole. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992). We first address whether there is a default level of benefits, and if so, whether that level is $2500 or $10,000. Section 627.736 mandates coverage, regardless of fault, for certain reasonable medical expenses “up to $10,000 if a physician . . . has determined that the injured person had an emergency medical condition;” otherwise, “[r]eimbursement for services and care provided . . . is limited to $2,500 if a provider . . . determines that the injured person did not have an emergency medical condition.” §627.736(l)(a)(3-4). The county court noted that absent from the statutory language is the amount of benefits available if there is no EMC determination. The court believed, as asserted by AFO, that it could not rely on legislative staff reports indicating a default benefit level of $2500, but which contained a disclaimer saying that the report does not reflect the position of the legislature. See House of Rep. Final Bill Analysis, Bill No. CS/CS/HB 119 (CS/CS/SB 1860) (May 7, 2012); Florida Senate 2012 Summary of Legislation Passed, Committee on Banking and Insurance, CS/CS/HB 119 (Undated).

Where, as here, a statute is sufficiently ambiguous that concluding either level of benefits is the default level of benefits may require an impermissible rewrite of the statute, courts must look to other means to determine the legislative will.⁶ Legislative staff reports are the clearest indicator of the legislature’s intent provided in the record. The presence of a standard disclaimer does not require courts to disregard them.⁷ The staff reports support the conclusion that $2500 is the default level of benefits when there is no EMC diagnosis. Staff of S. Banking & Ins. Comm., H. Message Summary, H.B. 119, at 1 (Fla. 2012). Judicial authority agrees. Santiago, 2016 WL 4540251 at *3-4,⁸ citing Robbins v. Garrison Prop. & Cas. Ins. Co., 809 F.3d 583, 587-88 (11th Cir. 2015) [25 Fla. L. Weekly Fed. C1900a] (interpreting statute under Florida law).

We now consider whether Enterprise received a notice of a covered loss that triggered the 30-day time to pay the claim under §627.736(4)(b). Under §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. See, e.g., Hoang Dinh Duong v. Ziadie, 125 So. 3d 225, 227 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D406c] (information is material where, if omitted, the intended recipient is prevented from making an informed decision). 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. Robbins, at 588 (where claim unsupported by EMC determination, insurer did not violate §627.736 by limiting benefits to $2500).

Along with its partial payment, Enterprise explained, as required by §627.736(4)(b)(1-3), that benefits were exhausted. That benefits are exhausted is reasonable proof that an insurer is not responsible for payment despite the provision of notice of loss. Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So. 2d 3, 8 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a] (exhaustion of benefits constitutes reasonable proof that no further payment is owed). AFO did not file an amended claim under §627.736(4)(b)(3) before sending demand letters under §627.736(10), followed by filing the underlying lawsuit. Both the demand letter and lawsuit were premature.

We are unpersuaded by AFO’s argument that Enterprise was required to propound a discovery request under §627.736(6)(b) to toll the 30-day time-to-pay and protect itself from liability for fees. Subsection (6)(b)’s emphasis is on a provider’s duty to furnish information at the request of an insurer, not on an insurer to make the request. Subsection (6)(b) imposes no such duty on the insurer. Indeed, it cautions that requests for information by an insurer without a reasonable basis may subject it to charges of engaging in an unfair business practice. Finally, to be effective, a (6)(b) request for information must be made within 30 days of the insurer’s receipt of a notice of covered loss. Because we have determined that Enterprise did not receive a valid notice of a covered loss before the lawsuit was filed, we find that it was unnecessary for Enterprise to make a (6)(b) request. Our conclusion is reinforced by the fact that the eventual EMC diagnosis AFO obtained was made by a physician who had not examined Simmons, had not filed a claim, and had not otherwise been identified to Enterprise.⁹ We wonder to whom AFO would have had Enterprise direct a (6)(b) request.¹⁰

Based on the foregoing, we conclude that Enterprise did not confess judgment. Payment was not wrongfully withheld, and AFO was not forced to file suit to obtain benefits. State Farm Florida Ins. Co. v. Lorenzo, 969 So.2d 393, 397-8 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D1791e].

It is therefore ORDERED that the judgment of the County Court is REVERSED and the cause is REMANDED for entry of judgment in favor of Enterprise. It is further ORDERED that Enterprise’s motion for appellate attorney’s fees is GRANTED conditioned upon the trial determination of entitlement to fees under its offer of judgment. AFO’s motion for appellate attorney’s fees is DENIED. (SHEEHAN and WOLFE, JJ., Concur.)

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¹ As defined by §627.732(16), Fla. Stat.

²§627.736(4)(b)(4), Fla. Stat.

³AFO did not submit a revised claim under §627.736(4)(b)(3), Fla. Stat.

⁴We acknowledge that the case is not yet final.

⁵An insurer does not necessarily waive defenses by virtue of a post-suit payment of benefits. See §627.736(4)(b)(6).

⁶As written, the provisions appear to cancel out one another. As the trial judge correctly noted, the Florida Supreme Court has rejected negation arguments. Am. Home Assurance Co. v. Plaza Materials Corp., 908 So.2d 360, 368 (Fla.2005) [30 Fla. L. Weekly S553a].

⁷Significant judicial authority accepts such reports in determining the legislative will. American Home Assurance Company v. Plaza Materials Corporation, 908 So. 2d 360, 368-9 (Fla. 2005) [30 Fla. L. Weekly S553a](stating that reliance on legislative staff reports is “the mainstream of Florida jurisprudence); GTC, Inc. v. Edgar, 967 So. 2d 781, 789 (Fla. 2007) [32 Fla. L. Weekly S546a] (staff analyses a “touchstone of the collective legislative will,” relying on a staff analysis with the standard disclaimer, available at: https://flsenate.gov/ data/session/2005/Senate/bills/analysis/ pdf/2005s2232.ep.pdf); Robert Rauchenberg Foundation v. Grutman, 198 So. 3d 685 at *2 (Fla. 2d DCA 2016) [41 Fla. L. Weekly D87b] (Relying on staff analyses available at https://flsenate.gov/ data/session/2006/Senate/bills/analysis/ pdf/2006s1170.bi.pdf; and https://flsenate.gov/ data/session/ 2006/ Senate/ bills/ analysis/pdf/2006s1170.ju.pdf); Campbell v. State, 184 So. 3d 579, 582 (Fla. 2d DCA 2016) [41 Fla. L. Weekly D247a] (Relying on staff analysis available at: https://flsenate.gov/ data/session/2009/House/bills/analysis/pdf/h0479g.GOA.pdf); State v. Cotton, 198 So. 3d 737 at 740-41 (Fla. 2d DCA 2016) [41 Fla. L. Weekly D500d](Relying on staff analysis available at: http://www.flsenate.gov/ Session/Bill/2012/ 0202/ Analyses/ 2012s0202.bc.PDF).

⁸The court is aware that Santiago is not yet final.

⁹This should not be read as approving or disapproving the rendering of a diagnosis by a professional who did not examine the injured person. Because Enterprise did not challenge the treating status of the physician that rendered the EMC diagnosis in this case, that is a question for another day.

¹⁰Despite AFO’s argument to the contrary on rehearing, neither Premier nor AFO appear to have made a formal EMC determination for the insured.