25 Fla. L. Weekly Supp. 410b
Online Reference: FLWSUPP 2505SPATInsurance — Personal injury protection — Deductible — Trial court correctly determined that medical bills were compensable when received and that insurer improperly processed bills by applying PIP deductible to bills out of sequence — Trial court correctly found that plaintiff had standing to and that insurer had waived any right to contest plaintiff’s alleged failure to attach a written assignment to its pre-suit demand letter
USAA CASUALTY INSURANCE COMPANY, Appellant, v. EMERGENCY PHYSICIANS, INC., d.b.a. EMERGENCY RESOURCES GROUP, a/a/o Brianna Spath, Appellee. Circuit Court, 7th Judicial Circuit (Appellate) in and for Volusia County. Case No. 2016-10011-APCC. L.T. Case No. 2015 -21118-CONS. July 20, 2017. Appeal from the County Court Volusia County, Florida. Counsel: Douglas H. Stein, Association Law Group, P.L., Miami, for Appellant. David M. Caldevilla, de la Parte Gilbert, P.A., Tampa; and Rutledge Bradford, Mark Cederberg, and Amanda Rehear, Bradford Cederberg, P.A., Orlando, for Appellee.
Cert. denied 4-23-2018 (USAA Casualty Insurance, etc. v. Emergency Physicians, Inc., Fla. 5DCA, Case Nos. 5D17-2650, 5D17-2651, 5D17-2652, and 5D17-2836.)
OPINION OF THE COURT
(ROWE, Judge.) This matter came before this Court in its appellate capacity for review of a Final Summary Judgment entered on March 14, 2016, by the County Court. The Court has considered the briefs filed, reviewed the record on appeal, and heard oral argument of counsel.
Relying on the decision in Mercury Insurance Company of Florida v. Emergency Physicians of Central Florida, LLP, 182 So. 3d 661 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D2364a], review denied, 2016 WL 5640245 (Fla. Sept. 29, 2016), which held that all medical bills are properly applied to a personal injury protection deductible in the order that they are received, the lower court entered final judgment ruling that the Defendant/Appellant improperly processed medical bills by applying the personal injury protection deductible to the medical bills out of order. The lower court also ruled that the Plaintiff/Appellee had standing to maintain the action below.
The Appellee’s position is that Mercury requires all compensable medical bills to be applied to the deductible in the order in which they were received. However, the Appellant’s position is that Mercury is distinguishable from and does not govern the instant case because the Appellant argues that the medical bills it received preceding the Appellee’s bills were not compensable when they were received, and thus Mercury does not require that the deductible apply to those bills. This Court rejects that argument, as well as the Appellant’s other arguments, and concludes that the Fifth District Court of Appeal decisions in Mercury and its progeny apply and are controlling here. See also Progressive Express Insurance Company v. Emergency Physicians of Central Florida, LLP, 187 So. 3d 1278 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D888b]; and Progressive American Insurance Company v. Emergency Physicians of Central Florida, LLP, 187 So. 3d 898 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D564a]. The lower court correctly determined that the subject medical bills were compensable when received and that the Appellant improperly processed the bills by applying the personal injury protection deductible to the bills out of sequence.
The Court further concludes that the lower court correctly found that the Plaintiff/Appellee had standing to bring and maintain its cause of action below. Finally, the Court concludes that the lower court properly found that the Defendant/Appellant had waived any right to contest the Plaintiff/Appellee’s alleged failure to attach a written assignment to its pre-suit demand letter. Although it now appears that there was in fact a written assignment of benefits provided with the pre-suit demand letter, and that this may have been overlooked by the trial court, the lower court committed no error in determining that the Defendant/Appellant had waived its ability to challenge the assignment or any other alleged defects in the claim.
For the foregoing reasons, the lower court’s final judgment is hereby
AFFIRMED. (UPCHURCH, J., concurs.)
