24 Fla. L. Weekly Supp. 975b

Online Reference: FLWSUPP 2411KISSInsurance — Personal injury protection — Coverage — Medical expenses — Emergency medical condition — Where at time of payment insured had not been diagnosed with EMC, insurer did not wrongfully withhold benefits by limiting benefits to $2,500 and explaining that benefits were exhausted in absence of EMC determination — Payment of additional benefits up to $10,000 limit after EMC diagnosis was provided three months after suit was filed did not amount to confession of judgment

FLORIDA INJURY KISSIMMEE, LLC, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2014-CC-010423-O. January 27, 2016. Steve Jewett, Judge. Counsel: Herb McMillan, Michael T. Gibson, P.A., Orlando, for Plaintiff. Randall A. Wainoris, Dutton Law Group, P.A., Tampa, for Defendant.

ORDER ON PLAINTIFF’S AND DEFENDANT’SMOTIONS FOR SUMMARY JUDGMENT

This cause came on for consideration by the undersigned on the Plaintiff’s and Defendant’s Motions for Summary Judgment, a hearing was held February 03, 2015, and court having heard argument and considered the motion, the Court finds as follows:

1. This case stems from a claim for personal injury protection insurance benefits filed by the Plaintiff, FLORIDA INJURY KISSIMMEE, LLC (hereinafter “Plaintiff”) as assignee of Ras Paulus (hereinafter “Claimant”) against the Defendant, USAA CASUALTY INSURANCE COMPANY (hereinafter “Defendant”), arising out of a motor-vehicle accident that allegedly occurred December 3, 2013.

2. At the time of the accident, Mr. Pulus was covered by an insurance policy issued by the Defendant that provided PIP benefits in accordance with the Florida Motor Vehicle No-Fault Law.

3. On December 3, 2013, Mr. Paulus was involved in a motor vehicle accident resulting in injuries covered by the insurance policy issued by the Defendant.

4. Mr. Paulus received treatment from the Plaintiff for injuries sustained in the accident.

5. On or about December 5, 2013, Mr. Paulus completed an Assignment of Benefits assigning to Plaintiff the Insured’s rights, title and interest under his insurance policy.

6. The bills for those services totaling $5,513.67 were submitted to the Defendant.

7. In paying the bills, the Defendant limited the reimbursements to $2500.

8. The Explanation of Reimbursement (EOR) form provided by the Defendant gave the following explanation for the refusal to reimburse:

“Per F.S.A. 627.736(1)(a)4, $2,500.00 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).”

9. On April 25th, 2014, the Plaintiff sent a letter informing the Defendant the payments were overdue.

10. In a May 28, 2014 letter, the Defendant acknowledged the receipt of the April 25th demand letter and explained why they had only reimbursed $2,500.00 of the claim. The letter states: “Per F.S.A. 627.736(1)(a)4, $2,500.00 has been paid under the Personal Injury Protection coverage for the above mentioned payment 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 F.S.A. 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 condition. . . .You may submit correspondence or questions to me.”

11. As a result, the Plaintiff filed this action on August 22, 2014.

12. In response to the suit, the Defendant sent the Plaintiff another letter on September 2, 2014 which was identical to the May 28 letter quoted above.

13. The Defendant argues the $2,500.00 limitation was appropriate because the medical records did not show that a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, a physician assistant licensed under chapter 458 or chapter 459, or an advanced registered nurse practitioner licensed under chapter 464 had determined, at that time, that the claimant had an emergency medical condition as statutorily required to authorize reimbursement above $2,500.00.

14. It is undisputed that the Plaintiff failed to provide a determination from any medical provider authorized in section 627.736(1)(a)(3) that the insured suffered from an emergency medical condition prior to the service of the Plaintiff’s demand letters.

15. On December 2, 2014, the Plaintiff faxed Dr. Ralph Martino’s “Final Narrative Report” to the Defendant. In that report, Dr. Martino opined “Based on my evaluation and physical examination of the patient, it has been determined that this patient had an emergency medical condition.”(emphasis added)

16. On December 6, 8 and 9, 2014, the Defendant processed the remaining claims and tendered payment for them. Those payments were made within 30 days of the Defendant’s receipt of Dr. Martino’s report.

17. The Plaintiff argues the Defendant’s payment of those claims subsequent to the filing of this suit result in a Confession of Judgment.

18. The Defendant argues the payments were not a Confession of Judgment because pursuant to the Policy and the applicable provisions of the Florida Motor Vehicle No-Fault Law, bills beyond the policy limits of $2,500.00 only become payable on the date the Defendant received notice of the emergency medical condition.

19. The Defendant argues FL Stat. § 627.736(4)(b) requires that payment demands include “written notice of the fact of a covered loss and the amount of same.” Because. . . “(I)t is the determination of an EMC that gives rise to benefits above $2500.00, it follows that the determination (also) requires written notice.”

20. In addition, the Defendant argues “no charges were due or overdue because the Plaintiff never responded to the request made pursuant to § 627.736(6)(b), Fla. Stat., prior to its Pre-suit Demand letters or prior to the exhaustion of the $2,500.00 in PIP benefits for the claimant.”

21. The Plaintiff argues that the language of the PIP statute mandates coverage of up to $10,000.00 unless a treating provider as defined in the statute determines that the claimant did not have an emergency medical condition.

22. Therefore, the issue before the Court turns on the interpretation of Florida Statute Sec. 627.736(1)(3)-(4) which holds:

3. Reimbursement for services and care provided. . .up to $10,000 if a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, a physician assistant licensed under chapter 458 or chapter 459, or an advanced registered nurse practitioner licensed under chapter 464 has determined that the insured person had an emergency medical condition.

4. Reimbursement for services and care. . . 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.

23. “(I)t is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control District, 604 So. 2d 452 (Fla. 1992)

24. “A basic tenet of statutory interpretation is that a statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all parts.” Jones v. ETS of New Orleans, 793 So. 2d 912 (Fla. 2001) [26 Fla. L. Weekly S549a] (quoting Acosta v. Richter, 671 So. 2d 149, 153-154 (Fla. 1996) [21 Fla. L. Weekly S29a]

25. “(A) provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme. .” Jones v. ETS of New Orleans, 793 So. 2d 912 (Fla. 2001) [26 Fla. L. Weekly S549a] (quoting Smith v. United States, 508 U.S. 223, 233 (1993), 153-154 (Fla. 1996)

26. Therefore, the Court must consider the statutory provisions of 627.736(1)(3)(4) in conjunction with the provisions of the PIP statute.

27. The Court finds the only reasonable interpretation between the two provisions is that PIP benefits are limited to $2,500.00 unless and until a qualified provider as defined in 627.736(1)(3)(4) has determined the insured suffered from an emergency medical condition.

28. To accept the Plaintiff’s argument that the insured is entitled to receive the full $10,000.00 in benefits until a qualified provider as defined in 627.736(1)(3)(4) determines the insured did not have an emergency condition would make 627.736(3) meaningless. In addition, it would require the insurer to pay benefits that are not compensable if it is later determined the insured did not suffer from an emergency medical condition.

29. The statutory intent of this section is to limit the amount of benefits based on the severity of the injury suffered by the insured. So to follow the Plaintiff’s position would subvert that legislative intent.

30. Section 627.736(4)(b) holds PIP benefits are overdue if not paid within 30 days of the insurer being given written notice of a covered loss.

31. As the Court found that PIP benefits are limited to $2,500.00 unless and until a qualified provider as defined in 627.736(1)(3)(4) has determined the insured suffered from an emergency medical condition, the Court must also find the notice requirement of 627.736(4)(b) to include an emergency medical condition determination.

32. Therefore, the Court finds the insurer is not put on written notice of a covered loss for purpose of 627.736(4)(b) time limits for benefits over $2,500.00 unless the notice to the insurer includes the emergency medical condition determination.

33. As of the time this suit was filed, Plaintiff had not provided notice that a specified physician or practitioner had determined that the insured had an emergency medical condition. In addition, the insured’s medical records did not show such a determination.

34. The Defendant received notice that a physician licensed under chapter 458 or chapter 459, had determined that the claimant had an emergency medical condition three months after the filing of the suit.

35. Since the $2,500.00 limit had been paid out, the Defendant can have no additional liability to the Plaintiff in this case unless and until a qualified provider has determined that the patient suffered from an emergency medical condition. 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].

36. The Defendant paid the remaining claims and tendered payment for all the remaining claims remaining up to $10,000.00 within thirty days (actually it appears within 7 days) of receiving Dr. Ralph Martino’s “Final Narrative Report” in which he opined “Based on my evaluation and physical examination of the patient, it has been determined that this patient had an emergency medical condition.”

37. As there had been no emergency medical condition determination provided prior to the filing of this suit and the Defendant paid what it owed in a timely manner, the Plaintiff’s lawsuit was premature.

38. The Court disagrees with the Plaintiff’s argument that the Defendant’s payment of benefits after the filing of the suit was a confession of judgment.

39. Florida Statutes sec. 627.428-Attorney’s fees holds:

(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

40. “By using the legal fiction of a ‘confession of judgment,’ the Florida Supreme Court extended the statute’s9627.428) application” to cases in which the insurer settles or pays a disputed claim before rendition of judgment. Basik Exports & Imports, Inc. v. Preferred Nat’l Ins. Co., 911 So.2d 291, 293 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2359a] (citing Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217 (Fla.1983)).

41. For the confession of judgment doctrine to apply, the insurer must have unreasonably withheld payment under the policy, Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217 (Fla.1983).

42. The purpose of section 627.428 is to penalize a carrier for wrongfully causing its insured to resort to litigation to resolve a conflict when it was reasonably within the carrier’s power to do so. Crotts v. Bankers & Shippers Ins. Co. of New York, 476 So.2d 1357 (Fla. 2d DCA 1985), review denied, 486 So.2d 595 (Fla.1986). See also Vermont Mutual Ins. Co. v. Bolding, 381 So.2d 320 (Fla. 5th DCA 1980).

43. The Defendant did not unreasonably withhold the payment for the benefits in the case. The payments for benefits over $2,500.00 were made timely. As a result, the payments in December were not a confession of judgement.

THEREFORE, it is ORDERED and ADJUDGED:

A. The Defendant’s Motion for Summary Judgment is GRANTED,

B. The Plaintiff’s Motion for Summary Judgment is DENIED.

C. The Plaintiff shall take nothing from this action and shall go hence without day.

D. The Court reserves jurisdiction to determine the amount of taxable attorney’s fees and costs.