25 Fla. L. Weekly Supp. 365a

Online Reference: FLWSUPP 2504THEOInsurance — Personal injury protection — Coverage — Emergency medical condition — Insurer properly limited benefits to $2,500 where qualified provider had not determined that insured suffered emergency medical condition — Fact that insurer paid additional benefits beyond $2,500 cap when it determined during litigation that it had utilized incorrect fee schedule in calculating reimbursement did not waive insurer’s right to claim exhaustion of benefits

TAMPA AVE CHIROPRACTIC CENTER, INC., a/a/o Maurice Theodule, Plaintiff, v. NATIONWIDE MUTUAL INSURANCE COMPANY OF America, Defendant. County Court, 9th Judicial Circuit in and for Orange County, Civil Division. Case No. 2014-CC-7561-O. May 26, 2017. Jeanette D. Bigney, Judge. Counsel: Robert W. Morris, Orlando, for Plaintiff. Sarah N. Rickey, Plantation, for Defendant.

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

This cause came before the Court on December 9, 2016, on Plaintiff’s and Defendant’s Motions for Summary Judgment. The Court, having reviewed the evidence, heard the arguments made by counsel, reviewed relevant legal authority, and been otherwise advised in the premises, makes the following findings of fact and conclusions of law:FINDINGS OF FACT

Maurice Theodule was involved in a motor vehicle accident on April 28, 2013, while in a vehicle insured by Defendant, Nationwide Insurance Company of America. The policy in effect provided personal injury protection (“PIP”) benefits in accordance with the Florida Motor Vehicle No-Fault Statute. The Plaintiff, Tampa Ave Chiropractic Center, Inc. submitted bills to Nationwide for chiropractic treatment rendered to Mr. Theodule for dates of service May 10, 2013 through July 31, 2013. In paying the bills, Defendant limited the reimbursements to $2,500.00. The Explanation of Reimbursement (EOR) form provided by the Defendant stated in pertinent part: “Maximum benefit limit reached Per F.S.A. 627.736(1)(a)4, where an Emergency Medical Condition has not been supported. . . . Reimbursed the amount remaining for the patient’s available limit of coverage. Benefits are now exhausted.” On or about November 18, 2013, Plaintiff sent a demand letter informing the Defendant that payments were overdue. Defendant acknowledged receipt of the demand letter and, in its response, reiterated that the medical records do not contain a diagnosis that Maurice Theodule sustained an emergency medical condition and PIP benefits are limited to $2,500.00. On July 30, 2014, after suit had been filed, Defendant discovered that it had mistakenly reimbursed two of the CPT codes at the worker’s comp rate, instead of the Medicare fee schedule rate. As a result, Defendant issued a partial confession in the amount of $55.18 that was sent along with a letter that stated, in pertinent part: “Please advise if you intend to continue litigation of the Non-EMC issues. If you do not, please forward Plaintiff’s attorneys’ fees and costs demand in full and final settlement of this case.” Plaintiff did not provide their demand and chose to continue litigating this case as to the Non-EMC issues. It is undisputed that the Defendant was never provided an EMC diagnosis.

STANDARD

Summary judgment is proper where there exists no issue of material fact and the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 129 (Fla. 2000) [25 Fla. L. Weekly S390a]; Haddad v. Hester, 964 So. 2d 707, 709 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D1008a]; Medley Warehouses, LC v. Scottsdale Ins. Co., 39 So. 3d 440, 444 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1456a]. This determination is based on “the pleadings and summary judgment evidence on file.” Fla. R. Civ. P. 1.510(c).

RECORD EVIDENCE

In support of Defendant’s Motion for Summary Judgment, Defendant filed the Affidavit of Njina McDonald whose sworn statement attested to the fact that benefits were properly exhausted at $2,500.00 on July 15, 2013 and that the additional payment of $55.18 was made in good faith and without the intention of waiving any legal defenses or rights under the subject policy of insurance or Florida Statutes.

In support of Plaintiff’s Cross Motion for Summary Judgment, Plaintiff relied on the deposition testimony of Defendant’s Corporate Representative whose sworn testimony acknowledged that benefits had been exhausted prior to issuing the additional payment of $55.18.

ARGUMENTS

Defendant relied on the binding 4th DCA opinion that was released on August 31, 2016, in the case of 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, 202 So.3d 88 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D2018b], wherein the Court held that the statute requires a determination of an emergency medical condition in order for PIP benefits to reach $10,000.00. The Court further clarified that “if there is no determination of an emergency medical condition or there has been a determination that the insured does not have an emergency medical condition, then the benefits would be limited to $2,500.00.” The record evidence indicates that the Defendant met its burden to establish exhaustion of benefits at $2,500.00 since it is undisputed that no EMC determination for Maurice Theodule was ever made.

Plaintiff’s Response in Opposition to Defendant’s Motion for Final Summary Judgment and Plaintiff’s Cross Motion for Summary Judgment were drafted and filed prior to the release of the aforementioned 4th DCA Opinion. However, Plaintiff’s Motion asserted that Defendant had waived its right to claim exhaustion of benefits at $2,500.00, based on its partial confession payment of $55.18.

In response to Plaintiff’s assertion of waiver, Defendant presented to the Court three distinct arguments as to why waiver was not applicable; 1. Defendant did not have the requisite intent 2. Insurance coverage cannot be extended by the doctrine of waiver and estoppel and 3. The avoidance of waiver was not plead in Plaintiff’s reply to Defendant’s Affirmative Defenses.

For its first argument, Defendant cited to the case of Richard J. Goodwin, v. Blu Murray Insurance Agency, Inc., 939 So. 2d 1098 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D2375c] wherein the 5th DCA defined the legal elements of waiver, which are: (1) The existence at the time of the waiver of a right, privilege, advantage, or benefit which may be waived; (2) the actual or constructive knowledge of the right; and (3) the intention to relinquish the right. Plaintiff did not proffer any evidence to rebut the sworn affidavit of Njina McDonald which affirms that the defendant did not have the requisite intent to waive any rights or defenses.

Defendant also argued that it is well settled that coverage and restrictions of coverage cannot be expanded by the doctrine of waiver see Bill Frisbie, Yankee Trailer Court, LLC, et al, v. Carolina Casualty Company, et al., 103 So.3d 1011 (Fla. 5th DCA 2012) [38 Fla. L. Weekly D49d].

Defendant’s final argument was that Plaintiff’s assertion of waiver at the summary judgment stage is prohibited by the Florida Rules of Civil Procedure. Rule 1.100(a) requires that “[if] an answer. . .contains an affirmative defense and the opposing party seeks to avoid it, the opposing party shall file a reply containing the avoidance.” The committee notes clarify Rule 1.100(a) by specifying that a reply is mandatory when a party seeks to avoid an affirmative defense. In the instant case, Plaintiff’s reply was merely a denial of the defendant’s affirmative defense. Accordingly, Defendant asserts that waiver was not properly plead in Plaintiff’s reply and, in support of that argument, cites to Esther Tax and Burton Tax v. Lester Keiser d/b/a Las Brisas Apartments, South and Aetna Insurance Company, 328 So.2d 517 (Fla. 4th DCA 1976) wherein the Court held that “Where Plaintiff’s did not reply to an affirmative defense as required under Florida rules, trial court properly granted summary judgment for defendant’s notwithstanding fact that there may well have been a genuine issue of material fact existing between parties.”

Plaintiff then presented to the Court, the case of Lloyds Underwriters at London v. Keystone Equip. Fin. Corp., 25 So. 3d 89 (Fla. 4th DCA 2009) [35 Fla. L. Weekly D5a] wherein the court held that “The distinction between a provision of forfeiture and one of coverage has been said to turn upon whether the loss was covered by the contract in the first instance and is asserted to have been lost or nullified as a consequence of the actions of the insured; if this is the case, then the provision is one of forfeiture.” Plaintiff argued that by limiting benefits to $2,500.00 on a $10,000.00 limit policy, the EMC provision is, in effect, a forfeiture provision as opposed to a coverage provision.CONCLUSIONS OF LAW

The Court agrees with the Plaintiff in that this case presented the issue of forfeiture versus coverage. However, this Court finds that the Statutory EMC provision in the policy is a coverage provision and not a forfeiture provision. PIP coverage is not extended beyond 2,500.00, absent an EMC determination. Benefits were properly capped at $2,500.00, due to the fact that no EMC determination was ever made for Maurice Theodule. Therefore, based on the above reasoning and cases cited, no genuine issue of material fact exists with respect to exhaustion of Maurice Theodule’s PIP benefits. However, this Court finds that, due to the lack of authority on the unique issues presented, continuing to litigate was not trivial and Plaintiff pursued its case in good faith. Therefore, Defendant is not entitled to recover its attorney’s fees from the Plaintiff under 57.105.

Accordingly, it is hereby ORDERED and ADJUDGED,that Defendant’s Motion for Final Summary Judgment is GRANTED;it is further

ORDERED and ADJUDGED,that Plaintiff’s Motion for Summary Judgment is DENIED;it is further

ORDERED and ADJUDGED,that Defendant’s Motion for Attorney’s Fees under 57.105 is DENIED;it is further

ORDERED and ADJUDGED that the Court shall reserve jurisdiction as to Plaintiff’s attorney’s fees and costs up until 7/30/14 for the partial confession; it is further

ORDERED and ADJUDGED that the Plaintiff shall take nothing by this action and Defendant shall go hence without day.