24 Fla. L. Weekly Supp. 558a

Online Reference: FLWSUPP 2407GUTIInsurance — 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 had right to limit benefits to $2,500 where qualified provider had not determined that insured suffered emergency medical condition — Insurer’s payment of benefits in excess of $2,500 cap was gratuitous payment and does not constitute waiver which would obligate insurer to pay up to $10,000

WESTCHESTER HEALTH & REHAB CENTER, INC., a/a/o Mario Gutierrez, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No: 2014-2930-SP-24 (01). August 1, 2016. Donald J. Cannava, Judge. Counsel: Kelly Arias, The Arias Law Group, for Plaintiff. Narcy Fajardo, Progressive PIP House Counsel, for Defendant.

ORDER GRANTING DEFENDANT’S MOTIONFOR FINAL SUMMARY JUDGMENT WITHMEMORANDUM OF LAW REGARDINGEMERGENCY MEDICAL CONDITION

THIS CAUSE came before the Court on July 26, 2016, on Defendant’s Motion for Final Summary Judgment with Memorandum of Law Regarding Emergency Medical Condition and Plaintiff’s Response to Defendant’s Motion for Summary Judgment as to the Issue of Emergency Medical Condition, and the Court having reviewed the file, affidavits, pleadings, relevant legal authorities, considered the arguments of counsel and being otherwise sufficiently advised in the premises, the Court finds as follows:BACKGROUND, PROCEDURAL HISTORY, FACTS

1. Westchester Health & Rehab Center, Inc. (hereinafter “Plaintiff”) filed a breach of contract action against Progressive American Insurance Company (hereinafter “Defendant”) for unpaid personal injury protection benefits under Florida’s No Fault Law pursuant to an assignment of benefits received from Mario Gutierrez (hereinafter “insured.)

2. A covered loss occurred on March 19, 2013. The insured, Mario Gutierrez, was covered under a policy of insurance (hereinafter “policy”) issued by Defendant that provided personal injury protection benefits in accordance with the Florida Motor Vehicle No Fault Law.

3. The insured sought medical treatment at the Plaintiff’s facility for injuries sustained as a result of the motor vehicle accident. Defendant received medical bills from Plaintiff along with various other providers. Defendant adjusted the medical bills and limited coverage to $2,500.00 in personal injury protection benefits under the policy because a qualified provider had not determined that the insured had an emergency medical condition.

4. Defendant filed a Motion for Final Summary Judgment and Plaintiff filed a Response to same as to the issue of Emergency Medical Condition. Defendant argues that where the evidence and records show that no determination by a qualified provider was made that the insured had an emergency medical condition, coverage limits under the Florida No Fault Statute and the policy are capped at $2,500.00. In Plaintiff’s response, Plaintiff raised the avoidances of waiver and estoppel. Plaintiff argues that Defendant waived the right to limit coverage to $2,500.00, where it paid $3,537.35 in actual personal injury protection benefits, and Defendant should be estopped from asserting emergency medical condition as a defense.

CONCLUSIONS OF LAW

The issues before the Court revolves around the interpretation of Florida Statute 627.736(1)(a)(3)(-(4) which provides reimbursement for medical benefits only for:

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 injured 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 Fla. Stat. 627.736.

An “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 function, [or] (c) serious dysfunction of any bodily organ or part. Fla. Stat. 627.732(16) (2013).

In this case, there are no factual disputes. There was no determination by a qualified provider that the insured had an emergency medical condition. The Court finds the Defendant has met its burden of proof in establishing there are no genuine issues of material fact. “When the material facts are undisputed, they form a question of law which the trial court is empowered to decide on a motion for summary judgment.” Richmond v. Florida Power & Light Co., 58 So.2d 687 (Fla. 1952.)

A. Emergency Medical Condition

When interpreting a statute, “it 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). Further, 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 of its parts.” Larimore v. State 2 So. 3d 101 (Fla. 2008) [33 Fla. L. Weekly S948a]. In reviewing the statute in question, the Court reads the statute to limit medical benefits to $2,500.00, unless a qualified provider has determined that the claimant had an emergency medical condition. See Enivert v. Progressive Select Ins. Co. Case No. 14-CV-80279 (S.D. Fla. July 23, 2014) [25 Fla. L. Weekly Fed. D123a]; Robbins v. Garrison Prop. & Cas. Ins. Co. Case No. 13-81259 (S.D. Fla. July 18, 2014 [25 Fla. L. Weekly Fed. D125a] (Order granting defendant’s motion to dismiss); Eduardo J. Garrido, D.C. v. Progressive American Insurance Company Case No 13-4491 (Fla. Miami-Dade Cty. Ct., January 8, 2015) [22 Fla. L. Weekly Supp. 446a]; Southside Chiropractic Centre, Inc., v. USAA Gen. Ind. Co. Case No.: COCE 13020731 (Fla. Broward Cty. Ct. June 10, 2014) [22 Fla. L. Weekly Supp. 152a], Pembroke Pines MRI, Inc. (Weinkle) v. USAA Cas. Ins. Co., Case No. COCE 14-000542(52) (Fla. Broward Cty. Ct. Oct. 20, 2014) [22 Fla. L. Weekly Supp. 448a] Precision Diag., Inc. v. United Serv. Auto. Assoc. Case No. CONO 14-001263(72) (Fla. Broward Cty. Ct. Aug. 14, 2014) [22 Fla. L. Weekly Supp. 389c]; Medical Center of the Palm Beaches v. USAA Casualty Ins. Co., Case No.: 50 2013 SC 012523 (Fla. Palm. Beach Cty. Ct. Aug. 20, 2014) [22 Fla. L. Weekly Supp. 279a]. Therefore, in the absence of a determination by a qualified provided that an emergency medical condition existed, the Plaintiff is only entitled to $2,500.00 in medical benefits.

B. Waiver

The Plaintiff seeks to avoid the statutory $2,500.00 cap alleging the Defendant waived it. The elements of waiver are: (1) the existence of a right, benefit, privilege, or advantage which may be waived; (2) actual or constructive knowledge of the right; and (3) the intention to relinquish the right. Leonardo v. State Farm Fire and Cas. Co., 675 So.2d 176 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1165a].

The Defendant had a right to cap benefits at $2,500.00 in the absence of an emergency medical condition determination. The Defendant had actual knowledge of that right as it is provided for in the subject policy of insurance. There was no evidence presented to the Court that the Defendant intended to relinquish the right to limit benefits to $2,500.00. Furthermore, it is a well settled established principal in the State of Florida that waiver and estoppel cannot create or extend coverage otherwise lacking. See Nationwide Mutual Fire Ins. Co. v. Voigt, 971 So.2d 239 (Fla. 2d DCA 2008) [32 Fla. L. Weekly D2519a](equitable principles such as estoppel may not generally be used affirmatively against an insurer to create or extend coverage otherwise lacking in the policy); United Auto Ins. Co. v. Brooks, 837 So.2d 423 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1841a] (doctrines of waiver and estoppel may not be used to create or extend coverage where none exists); United Auto Ins. Co. v. Garrido, 990 So.2d 574 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1846b] (waiver does not apply to provide coverage where none exists and would be a violation of clearly established principles of law.)

Any payment made above the cap is akin to a gratuitous payment and is therefore a nullity. See Coral Imaging Services a/o/a Virgilio Reyes v. GEICO Indemnity Ins. Co., 955 So.2d 11 (Fla. 3rd DCA 2006) [31 Fla. L. Weekly D2478a]; see also Columna, Inc. a/a/o Amsley Orelus v. Progressive American Ins. Co., 17th Jud. Cir. in and for Broward County, Case No. COCE 14-005113, Nov. 13, 5015, Honorable Stephen J. Zaccor (The Defendant’s intentional relinquishment of the right to pay no more than the statutory cap does not equate to the Defendant now being obligated to pay up to $10,000.00. As there is no EMC, the Defendant is not required to pay more than $2,500.00.) The Court finds that Defendant’s Affidavit which alleges limits of coverage were capped at $2,500.00 does not impeach itself and the Court is satisfied there is no evidence otherwise leading to a genuine issue of material fact on this issue.

Accordingly, it is ORDERED AND ADJUDGED that Defendant’s Motion for Final Judgment is hereby GRANTED. Plaintiff’s claim is hereby DISMISSED. The Plaintiff shall take nothing by this action and the Defendant shall go hence without day. Defendant is the prevailing party in this action. Accordingly, the Court RESERVES jurisdiction to determine attorneys’ fees and costs owed to Defendant.