26 Fla. L. Weekly Supp. 517a
Online Reference: FLWSUPP 2606SYSTInsurance — Personal injury protection — Motion to strike or exclude unpled or waived issues is granted — Bar to injection of new claim or theory subsequent to a recent Florida Supreme court ruling that undermined the original claim or theory
ACK-TEN GROUP, LLC d/b/a SEACREST OPEN MRI OF DELRAY BEACH, a Florida Corporation (a/a/o Systermans, Glen), Plaintiff, v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-2016-SC-010586-XXXX-MB. July 6, 2018. Sherri L. Collins, Judge. Counsel: Robert B Goldman, Florida Advocates, Dania Beach, for Plaintiff. Victoria San Pedro Madani, Shutts & Bowen, LLP, Miami, for Defendant.
ORDER GRANTING ALLSTATE’S MOTION TOEXCLUDE/STRIKE ISSUES WAIVED AND/OR NOT PLEDBY THE PLAINTIFF IN ITS COMPLAINT
THIS CAUSE, having come before the Court on June 25, 2018 on a Mandatory Case Management Conference and on Defendant’s Motion to Exclude/Strike Issues Waived and/or Not Pled by the Plaintiff. The Court having reviewed Defendant’s Motion and Plaintiff’s Response thereto, heard argument of counsel, and being otherwise fully advised in the premises, this Court makes the following findings of fact and conclusions of law:Material Facts
On September 20, 2016, the Plaintiff filed a single-count Complaint over PIP benefits payments in connection with an automobile accident. The Complaint specifically alleged that the “Defendant partially paid and/or did not pay Plaintiff for services rendered by Plaintiff to Claimant after receiving Plaintiff’s Notice of Intent to Initiate Litigation.” The Complaint goes further and states that “[d]espite prior demand by Plaintiff, Defendant has refused and continues to refuse to issue payment of all sums due Plaintiff.” The Complaint further avers “Defendant owes Plaintiff approximately $683.00,1 or remaining policy benefits, for Personal Injury Protection benefits, and to the extent of any other available coverage, extended Personal Injury Protection and Medical Payments benefits for services rendered by Plaintiff to Claimant on 08/09/2011 to 08/09/2011.”
On October 28, 2016, Plaintiff filed a Motion to Stay Case Pending Appeal. In its Motion, Plaintiff sought a stay of the case pending appeal of Allstate Ins. Co v. Orthopedic Specialists before the Florida Supreme Court on the issue of whether Allstate wrongfully limited its reimbursements under Medicare fee schedules. Plaintiff’s Motion alleges:
On or around January 20, 2016, the Florida Supreme Court recently agreed to take up Allstate’s appeal of a ruling that it wrongfully limited its reimbursements under Medicare fee schedules for motorists’ personal injury protection claims, an opinion which conflicts with another appellate court decision. Pursuant to its order, the state’s highest court will review the Fourth District Court of Appeals’ ruling from August that a bare reference to the state’s personal injury protection statute did not constitute sufficient notice that the insurer was electing to employ Medicare fee schedules for PIP claims.
(emphasis supplied).
Paragraph three (3) of the Plaintiff’s Motion to Stay Pending Appeal states “[a]s the pending issue in the highest court is essentially the same disputable issue as this matter, Plaintiff is seeking to have this case stayed pending the outcome of the Supreme Court as it would affect litigation in this matter” (emphasis in original).
On October 31, 2016, Allstate answered the Complaint by asserting only one affirmative defense, wherein Allstate quoted the language in its policy and asserted that Allstate’s policy expressly elected reimbursement based on the fee schedule limitations authorized by the Florida PIP statute.
On January 26, 2017, in Allstate Insurance Company v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a] (the “Serridge decision”), the Florida Supreme Court held that the policy language provides “legally sufficient notice” of Allstate’s election to reimburse based on the fee schedule limitations. During the pendency of the Serridge appeal and following the Serridge decision, the Plaintiff allowed this case to sit without litigating it for an extended period of time.
On the eve of a Case Management Conference set on July 7, 2017, Plaintiff represented the intent to raise, an unpled theory of breach of contract, to wit, whether Allstate improperly applied the 2011 Medicare fee schedule and improperly paid per the technical component rate in paying Plaintiff’s bills when it should have applied the 2007 Medicare fee schedule and should have not paid per the technical component rate (hereinafter “Unpled Issue”). It was not until after the Florida Supreme Court issues its ruling in Serridge that Plaintiff first alluded to a different theory of recovery.
Allstate timely filed the instant Motion to Exclude/Strike Issues Waived and/or Not Pled by the Plaintiff in its Complaint on July 17, 2017.
On October 18, 2017, Plaintiff filed “Plaintiff’s Response to Defendant’s ‘Motion to Exclude/Strike Issues Waived and/or Not Pled by the Plaintiff in its Compaint [sic]’ and ‘Motion for Protective Order’ Concerning Plaintiff’s Supplemental Discovery (RE: Improper Billing); Motion to Compel Responses to Supplemental Discovery (RE: Improper Billing); Request for an Award of Sanctions.”
The pleadings and the record before this Court all make clear that this case involves solely the Serridge Issue. Said issue was decided in favor of Allstate by the Florida Supreme Court in Orthopedic Specialists. It was not until after the Florida Supreme Court found in favor of Allstate, quashing the ruling from the Fourth District Court of Appeal in Orthopedic Specialists, on January 26, 2017, and subsequently denied rehearing finalizing its ruling in favor of Allstate on the sole legal issue presented by the Plaintiff in this case, that the Plaintiff contended for the first time in this case that there were unpled issues presented in this lawsuit not controlled by Orthopedic Specialists. As such, it is clear that up until the finalization of the Florida Supreme Court’s ruling in Orthopedic Specialists in favor of Allstate on the issue of policy language as to application of fee schedule, Plaintiff’s position and representations to this Court were that the Serridge Issue was the sole issue presented by this litigation and as such, Orthopedic Specialists is case-dispositive in this matter. Accordingly,
IT IS HEREBY ORDERED AND ADJUDGED that Defendant’s Motion to Strike/Exclude Issues Waived and/or not Pled by Plaintiff is GRANTED.
