26 Fla. L. Weekly Supp. 400a

Online Reference: FLWSUPP 2605CRUZInsurance — Personal injury protection — Coverage — Emergency medical condition — Only licensed medical professionals listed in section 627.736(1)(a)3 are capable of making determination that insured had emergency medical condition; neither court nor insurer are authorized to make that determination — Where medical provider failed to provide determination of emergency medical condition requested by insurer, PIP benefits were not overdue, and demand letter was premature — Insurer did not waive requirement to provide emergency medical condition determination by paying benefits in excess of $2,500 limit for claimants who had not suffered an emergency medical condition

CELPA CLINIC, INC., a/a/o Josefina M. Cruz, Plaintiff, v. CENTURY-NATIONAL INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2018 11095 CODL. Division 73 (Miller). July 20, 2018. A. Christian Miller, Judge. Couinsel: Brooke Boltz, PIP Lawyers, P.A., Oviedo, for Plaintiff. Erika M. Reagan, McFarlane Law, Coral Springs, for Defendant.

ORDER GRANTING DEFENDANT’S MOTION FORFINAL SUMMARY JUDGMENT

THIS CAUSE having come before the Court upon the Defendant’s Motion for Final Summary Judgment filed on April 19, 2018, and the Court having read the motion and the Plaintiff’s response, having conducted a hearing on the motion on June 27, 2018 and heard the arguments of counsel, otherwise being fully advised in the premises herein, the Court finds as follows:

1. Josephina Cruz was involved in an automobile accident on May 3, 2017.

2. Thereafter, Ms. Cruz sought medical care from Plaintiff for injuries resulting from the accident.

3. Pursuant to an assignment of benefits, Plaintiff requested payment for $9,847.86 in PIP benefits from Defendant for its services rendered to Ms. Cruz.

4. Defendant paid some of Plaintiff’s bills, but requested Plaintiff provide evidence that a qualified medical provider had determined that Ms. Cruz had an emergency medical condition (“EMC”), pursuant to Florida Statute 627.736(6)(b).

5. Despite several such “6(b)” requests, Plaintiff never sent Defendant an EMC determination made by a qualified medical provider.

6. On November 8, 2017, Plaintiff sent Defendant a demand letter pursuant to Florida Statute 627.736(10) seeking $7,878.29 in unpaid PIP benefits.

7. On December 28, 2017, Defendant paid Plaintiff $4,559.01 in PIP benefits plus interest, even though it had not received the requested EMC information.

8. On February 13, 2018, Plaintiff filed this action to recover the balance of unpaid benefits.

9. The issues before the Court are (1) whether or not the Defendant, or this Court, can determine that Ms. Cruz had an EMC, (2) whether or not the failure to provide an EMC determination is fatal to the Plaintiff’s lawsuit, and (3) whether or not Defendant waived this issue when it paid Plaintiff in excess of $2,500.

Who Makes the EMC Determination

10. Plaintiff argues that this Court and the Defendant can and should make the EMC determination based upon Ms. Cruz’s medical records.

11. Defendant argues that only a qualified medical provider listed in the statute can make the EMC determination.

12. In Progressive American Insurance Company v. Eduardo J. Garrido D.C. P.A., the Third DCA held “when no EMC diagnosis has been provided by an authorized medical provider as required by section 627.736(l)(a)3., the available PIP medical benefits are limited to $2,500.” 211 So. 3d 1086, 1093 (Fla. 3d DCA 2017) [42 Fla. L. Weekly D408a]. (emphasis added)

13. Similarly, in Medical Center of Palm Beaches v. USAA Casualty Insurance Company, the Fourth DCA held that ”section 627.736 limits an insurer’s obligation to provide personal injury protection benefits to $2,500, unless one of the medical providers listed in subparagraph (1)(a)(3) has determined that the injured person had an emergency medical condition.” 202 So. 3d 88, 92 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D2018b]. (emphasis added)

14. Thus, it is already clear that Defendant’s position is the prevailing view in Florida. That is to say — only one of the licensed medical professionals listed in 627.736(l)(a)3 are capable of making an EMC determination, rather than lay persons such an insurance adjuster or this Court.

15. This approach makes more sense because a properly licensed and qualified medical professional is in a much better position to make this type of judgment call than a lay person with comparatively little to no medical training, especially in the context of the limited time frame allowed for an insurer to adjust PIP claims before they become overdue.

16. Moreover, if the Plaintiff’s position were true — that lay people are authorized to make this determination — that would effectively render the language in section (l)(a)3 meaningless surplusage. See Borden v. East-European Ins. Co., 921 So. 2d 587, 595 (Fla. 2006) [31 Fla. L. Weekly S34a] (recognizing “[i]t is also a basic rule of statutory construction that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.”)

17. As neither the Court nor the Defendant are authorized by statute to make the EMC determination, Plaintiff was required to provide proof that a qualified medical provider made such a determination if Plaintiff desired more than $2,500 in PIP benefits.

Effect of Failure to Provide EMC Determination

18. Defendant requested Plaintiff provide this information pre-suit on several occasions pursuant to Florida Statute 627.736(6)(b).

19. Because Plaintiff failed to provide this information to Defendant, the benefits were not overdue. See Florida Statute 627.736(6)(b). (“If an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under paragraph (4)(a), the amount or the partial amount that is the subject of the insurer’s inquiry is 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.)

20. Because payments were never overdue, Defendant’s demand letter sent pursuant to Florida Statute 627.736(10) was premature. See MRI Associates of America v. State Farm Fire and Casualty Co., 61 So. 3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b].

21. Furthermore, Florida Statute 627.736(10) clearly states that a demand letter is a condition precedent to filing suit.

Waiver

22. Lastly, the Court finds that Defendant did not waive the lack of an EMC determination by paying Plaintiff benefits that exceeded the $2,500 threshold for three reasons.

23. First, the Court finds this payment in excess of $2,500 to be a gratuitous overpayment, rather than a waiver.

24. Second, the Defendant consistently and repeatedly demanded proof of an EMC determination from the very beginning of its communications with Plaintiff.

25. Third, to find a waiver in this situation would be inconsistent with the overarching public policy of the PIP statute, which is to promote prompt payment of benefits.

Therefore, it is ORDERED AND ADJUDGED that:

A. Defendant’s Motion for Final Summary Judgment is GRANTED.

B. Plaintiff shall take nothing by this action and that Defendant shall go hence without day.