25 Fla. L. Weekly Supp. 470a
Online Reference: FLWSUPP 2505AETIInsurance — 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 properly limited benefits to $2,500 where qualified provider had not determined that insured suffered emergency medical condition — No merit to argument that insurer was required to pay benefits up to $10,000 unless there was determination of absence of emergency medical condition — Determination of emergency medical condition made and submitted to insurer after suit was filed was not sufficient to place insurer on notice of covered loss for benefits over $2,500 prior to suit being filed
MILLENIA CHIROPRACTIC, LLC a/a/o Anocillia Etienne, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2014-SC-002743-O. December 4, 2015. Counsel: Richard Hale, Hale, Hale & Jacobsen, P.A., Orlando, for Plaintiff. Eric Biernacki, Andrews Biernacki Davis, Orlando, for Defendant.
[AFFIRMED. 25 Fla. L. Weekly Supp. 411b]
ORDER GRANTING DEFENDANT’SMOTION FOR SUMMARY FINAL JUDGMENT
(CAMERON, Judge.) This CAUSE having come before this Court on October 14, 2015, on Defendant’s Motion for Summary Final Judgment and Motion for Protective Order, and the Court having reviewed the evidence, heard the arguments of counsel, and being otherwise fully advised in the premises, finds as follows:
FINDINGS OF FACT
1. The Plaintiff, MILLENIA CHIROPRACTIC, LLC, as assignee of Ancollia Etienne, filed a Personal Injury Protection lawsuit, against the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, on March 13, 2014, for medical bills arising from treatment rendered to Ancollia Etienne, as a result of injuries she allegedly sustained in an automobile accident that occurred on May 21, 2013.
2. At the time of the accident, Ancollia Etienne was covered under an automobile insurance policy issued by the Defendant that provided personal injury protection benefits in accordance with the Florida Motor Vehicle No-Fault Law.
3. Following the accident, Ancollia Etienne sought chiropractic treatment with the Plaintiff. The Defendant adjusted the medical bills and paid out $2,500.00 in personal injury protection benefits for Ancollia Etienne’s medical treatment.
4. The Defendant limited the benefits to $2,500.00 because no qualified provider authorized under §627.736(1)(a)(3), Florida Statutes (2013), had determined that Ancollia Etienne had sustained an emergency medical condition (EMC).
5. The Defendant filed a Motion for Final Summary Judgment and affidavit in support of same on March 30, 2015, as to the issue of emergency medical condition. It is the Defendant’s position is that both the language of the PIP Statute and subject policy, limit reimbursement of medical benefits to $2,500.00, unless a qualified medical provider determines that the claimant had sustained an emergency medical condition.
6. On October 12, 2015, two days prior to the hearing on the Defendant’s Motion for Summary Final Judgment, the Plaintiff filed the affidavit of Andrew Akerman, M.D., in opposition to the Defendant’s motion. In his affidavit, Dr. Ackerman stated his opinion that Ancollia Etienne had suffered an emergency medical condition (EMC) as a result of the subject motor vehicle accident which had occurred on May 21, 2013.
7. This affidavit was the first written notice provided to the Defendant that Ancollia Etienne had potentially suffered an emergency medical condition.
8. Plaintiff also filed a Response to Defendant’s Motion for Summary Judgment, on October 13, 2105, the day before the hearing, arguing that the language of the PIP Statute mandates coverage of $10,000.00, unless a treating provider determines that the claimant did not have an emergency medical condition.
CONCLUSIONS OF LAW
9. The issue before the Court revolves around the interpretation of §§627.736(1)(a)(3)-(4), Florida Statutes (2013), 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.
10. 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). “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.’ ” 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]). Further, “[a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme.” Id. (quoting Smith v. United States, 508 U.S. 223, 233 (1993).
11. In reviewing these statutory provisions and the PIP Statute as a whole, this Court finds that the only reasonable interpretation is that PIP medical benefits are limited 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. and Cas. Ins. Co., Case No. 13-81259 (S.D. Fla., July 18, 2014) [25 Fla. L. Weekly Fed. D125a]; Southside Chiropractic Centre, Inc. v. USAA Gen. Ind. Co., 22 Fla. L. Weekly Supp. 152a (Fla. Broward Cty. Ct., June 10, 2014); Pembroke Pines MRI, Inc. (Weinkle) v. USAA Cas. Ins. Co., 22 Fla. L. Weekly Supp. 448a (Fla. Broward Cty. Ct., Oct. 20, 2014). Thus, a qualified medical provider must affirmatively determine that the claimant had an emergency medical condition to be entitled to the full $10,000.00 in PIP benefits.
12. Plaintiff’s argument that an insured is entitled to $10,000.00 in PIP benefits unless a treating provider determines that the claimant did not have an emergency medical condition would render §627.736(1)(a)(3) superfluous. For instance, as United States District Judge Robert N. Scola pointed out in Robbins v. Garrison Prop. and Cas. Ins. Co., chiropractors are not listed among the qualified medical providers who can determine that the claimant suffered an emergency medical condition. However, chiropractors are included in the list of qualified medical providers who can determine that claimant did not suffer an emergency medical condition. Thus, under Plaintiff’s interpretation, “if the chiropractor remained silent, the injured person would be able to avoid the lower $2,500 limit on PIP medical benefits,” which would lead to inconsistencies within the statute. See, id. Further, it would defeat the statutory intent to limit PIP benefits based on the severity of the injury.
13. This Court also finds that an insurer is not put on written notice of a covered loss for any benefits over $2,500.00, until there has been a determination of an emergency medical condition (EMC) by a qualified provider and the Defendant receives notice of said determination.
14. Pursuant to §627.736(4)(b), Florida Statutes (2013), PIP benefits are overdue if not paid within 30 days after the insurer is furnished with written notice of the fact of a covered loss. The Plaintiff obtained the affidavit of Andrew Ackerman, M.D., which contains his EMC finding, in an attempt to satisfy the requirement that it provide written notice of a covered loss to the Defendant for benefits over $2,500.00. The Plaintiff cites AFO Imaging, Inc., a/a/o Santonio Simmons v. Enterprise Leasing Co. of Florida, LLC, 22 Fla. L. Weekly Supp. 838a (Hillsborough County Ct., Jan. 16, 2015) for the proposition that §627.736 does not impose any deadline or other guidelines or requirements for submitting an emergency medical condition determination, and that its submission of Dr. Ackerman’s determination, together with the lack of any determination that there was no emergency medical condition, defeats the $2,500 limitation of §627.736(1)(a)(3).
15. This Court differs with the Plaintiff’s reasoning for which the Plaintiff relies upon the AFO Imaging decision. Dr. Ackerman’s affidavit was the first written notice ever provided to the Defendant that Ancollia Etienne had suffered an emergency medical condition. This EMC determination was made and submitted to Defendant after suit was filed, and therefore was not sufficient to put the Defendant on notice of a covered loss for any benefits over $2,500.00 prior to suit being filed. See, Dorsal Rehab, Inc., a/a/o Deluise Skylar, vs. Progressive American Ins. Co., Case No. 14-013913 COCE 56 (Fla. Orange Cty. Ct., September 2, 2015) [23 Fla. L. Weekly Supp. 490b].
Accordingly, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion for Summary Final Judgment and Motion for Protective Order is GRANTED; it is further
ORDERED and ADJUDGED that the Defendant’s Ore Tenus Motion to Strike the Affidavit of Andrew Akerman, M.D., as untimely is DENIED; it is further
ORDERED and ADJUDGED that Plaintiff shall take nothing by this action and Defendant shall go hence without day; it is further
ORDERED and ADJUDGED that the Court shall reserve jurisdiction as to Defendant’s attorney’s fees and taxable costs.
