25 Fla. L. Weekly Supp. 494a
Online Reference: FLWSUPP 2505FAITInsurance — Personal injury protection — Coverage — Emergency medical condition — In suit seeking PIP benefits is excess of $2,500, proof of determination of emergency medical condition is essential element of plaintiff medical provider’s case — Where no qualified medical provider has made determination that insured had emergency medical condition, and insurer had paid $2,500 in benefits on behalf of insured prior to filing of suit, insurer has no additional liability to provider — Where provider ignored insurer’s requests for information on whether emergency medical condition existed, claims never became overdue and demand letter was premature — Insurer’s motion for summary disposition is granted
GILMORE CHIROPRACTIC a/a/o Virginia Faitella, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 19th Judicial Circuit in and for Saint Lucie County. Case No. 56-2016-SC-000545-C2. July 21, 2017. Daryl Isenhower, Judge
.FINAL JUDGMENT FOR DEFENDANT GRANTINGDEFENDANT’S MOTION FOR SUMMARY DISPOSITION
This matter came before the Court for hearing on January 20, 20171 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. 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, GILMORE CHIROPRACTIC (hereinafter “Plaintiff”) as assignee of Virginia Faitella (hereinafter “Claimant”) against Defendant, USAA CASUALTY INSURANCE COMPANY (hereinafter “Defendant”), arising out of a motor-vehicle accident that occurred on June 17, 2014.
2. Plaintiff submitted its insurance claims forms for treatment of Claimant, accompanied by medical records, for dates of service from June 26, 2013 to October 7, 2014.
3. Defendant responded to each of the insurance claims forms at issue with Explanations 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. Plaintiff did not respond to the requests for documentation or information regarding the claimant’s emergency medical condition. Rather, Plaintiff sent a purported pre-suit demand letter dated January 28, 2015, which was received by USAA on February 4, 2015.
5. Defendant responded to the pre-suit demand, stating 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.
6. Plaintiff did not provide documentation or information regarding the claimant’s emergency medical condition at this time. Rather, Plaintiff filed this lawsuit on April 15, 2016 contesting Defendant’s adjustment of the claim.
7. No medical provider authorized in § 627.736(1)(a)3 submitted written notice of an EMC determination to Defendant prior to the service of Plaintiff’s demand letter or prior to filing suit.
8. Defendant moved for summary judgment on three grounds: 1) failure to respond to defendant’s request for documentation or information, 2) premature pre-suit demand (before benefits are overdue), and 3) Plaintiff’s failure to provide an EMC determination prior to suit.
9. Based on these facts, this Court has determined that Defendant’s motion for summary judgment should be granted.
CONCLUSIONS OF LAW
A. EMERGENCY MEDICAL CONDITION
10. In a lawsuit seeking benefits under the PIP statute, proof of emergency medical condition is an essential element of a plaintiff’s case where emergency medical condition is an issue. There is nothing in the PIP statute suggesting a legislative intent to alter the normal dynamics of a lawsuit by placing the burden on the defendant in a PIP case to prove that an emergency medical condition does or does not exists. See Derius v. Allstate Indem. Co., 723 So. 2d 271, 272 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a] (“In a lawsuit seeking benefits under the statute, both reasonableness and necessity are essential elements of a plaintiff’s case. There is nothing in the PIP statute suggesting a legislative intent to alter the normal dynamics of a lawsuit by placing the burden on the defendant in a PIP case to prove that a proposed charge was unreasonable or that a given service was not necessary.”)
11. 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 $2,500, 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 $2,500 in benefits can become available.
12. In short, “benefits above $2,500 are available only where a medical provider determines an emergency medical condition exists. Where a medical provider does not make a determination that there is an emergency medical condition, benefits above $2,500 are not available.” Med. Ctr. of Palm Beaches v. USAA Cas. Ins. Co., 202 So. 3d 88, 93 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D2018b]. See Robbins v. Garrison Prop. & Cas. Ins. Co., 809 F.3d 583, 588 (11th Cir. 2015) [25 Fla. L. Weekly Fed. C1900a] (holding that an insurance company did not violate §627.736 by limiting benefits to $2,500 when the claimant provided no evidence that the injured person had an EMC).
13. By listing specific medical professionals who are authorized to make this determination, the No-Fault statute clearly imposes the burden of determining that an EMC exists on the provider.
14. The record evidence establishes that Plaintiff has never provided notice that a qualified provider determined that the claimant had an EMC, that Defendant did not receive such notice from any qualified provider, and furthermore that a medical provider has not made a determination that there is an emergency medical condition.
15. As a result, based on the record evidence presented in this case, the benefits under the Policy were legally limited to $2,500. Since the $2,500 limit has been paid out, Defendant had no additional liability to Plaintiff when this case was filed, and continues to owe no additional liability to Plaintiff. 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.
16. 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).
17. The Court finds that valid requests for information, specifically, whether an EMC existed, were made by Defendant to Plaintiff and that these requests were ignored.
18. Thus, under § 627.736(6)(b), payment could never have been due, because it would only become “overdue 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. Medical Ctr. of the Palm Beaches, 202 So. 3d at 92 and Kaminester v. State Farm Mut. Auto. Ins. Co., 775 So. 2d 981 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2705a].
C. PREMATURE DEMAND LETTER
19. § 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.
20. 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.
21. Because Plaintiff’s claim for benefits was never overdue, 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].
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, Plaintiff served a pre-suit demand. The pre-suit demand was premature because nothing was due or overdue when it was served, and no benefits are currently due or overdue because Defendant was never provided with an emergency medical condition determination.
Pursuant to Florida Small Claims Rule 7.135, where there is no triable issue, the court shall summarily enter an appropriate order or judgment.
It is therefore ORDERED AND ADJUDGED that Defendant’s Motion for Summary Disposition be and hereby is, GRANTED; 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 additional hearing on the question of Kenneth Gilmore’s affidavit was held April 12, 2017. See the related Order filed May 11, 2017.
