26 Fla. L. Weekly Supp. 666a

Online Reference: FLWSUPP 2608PEREInsurance — Personal injury protection — Deductible applies to bill for injuries sustained by dependent relative of named insured — Because bill at issue was the first compensable bill received by insurer, deductible applied to entire amount claimed

DORAL HEALTH CENTER, P.A. a/a/o Alejandro Perez, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 12-2252-SP-24 (1). September 27, 2018. Diana Gonzalez-Whyte, Judge. Counsel: Ryan Peterson, Law Offices of Richard Patino, for Plaintiff. Maury L. Udell, Beighley, Myrick, Udell & Lynne, P.A., for Defendant.

ORDER GRANTING DEFENDANT’S RENEWEDMOTION FOR FINAL SUMMARY JUDGMENT

THIS CAUSE came before this Court on September 24, 2018 on Defendant’s Renewed Motion for Final Summary Judgment, and the Court after reviewing the record, all memoranda, and submitted case law, and having analyzed the arguments of counsel, and weighed the evidence, it is hereby

ORDERED AND ADJUDGED as follows:

UNDISPUTED FACTS

1. Plaintiff, Doral Health Center, P.A. (“Doral Health Center”), filed suit against Defendant, Progressive American Insurance Company (“Progressive”) to recover Personal Injury Protection (“PIP”) benefits for the treatment of Alejandro Perez (“Perez”).

2. Perez, a minor at the time, allegedly sustained his injuries during an automobile accident on May 28, 2012.

3. At the time of the alleged accident, an existing contract which was in effect on the date of the loss at issue obligated Defendant to provide insurance coverage to the named insureds and dependent resident relatives. See Deposition of Lisa Campbell, previously filed with this Court on May 15, 2017. The policy states that a “Personal Injury Protection Deductible applies to the [named insured] and Dependent Relatives” in the amount of $1,000/ person. See Deposition of Lisa Campbell Campbell Dep. Tr. at 14:7-16,

4. At the time of the alleged accident Perez, the claimant, resided with his grandfather, the named insured.

5. On July 30, 2012, Progressive received a medical bill for PIP benefits in the amount of $400.00 from Transimaging Diagnostic. See Campbell Dep. Tr. at 16:16-17:5.

6. On August 1, 2012, Progressive received a medical bill for PIP benefits in the amount of $641.40 from Plaintiff. See Campbell Dep. Tr. at 29:22-23.

7. Transimaging Diagnostic’s bill was denied for breach of contract by claimant and no payment was issued. Additionally, Transimaging Diagnostic never filed suit with respect to the disputed amount.

8. Under Florida law, a party has five (5) years to bring a claim for breach of contract. Therefore, Transimaging Diagnostic had until August 29, 2017, to file suit against Progressive for any benefits Transimaging claimed to be owed by Progressive.

9. As of August 29, 2017, Transimaging Diagnostic had not challenged Progressive’s denial of benefits for claimant and the statute of limitations has run.

10. Plaintiff filed nothing in opposition to Defendant’s renewed motion for final summary judgment.

Based on the undisputed facts above, the issue before the Court is whether a question of fact exists as to whether the deductible applies to Plaintiff’s bill. Under Florida law it is the plaintiff’s burden to prove that the deductible does not apply to its bill. The Court, having reviewed the entire record finds that there is no question of fact that the deductible applies to Plaintiff’s bill and as a matter of law Plaintiff cannot recover against Defendant and is entitled to final summary judgment.ANALYSIS

I. THE DEDUCTIBLE APPLIES TO PLAINTIFF’S BILL AS CLAIMANT IS THE DEPENDANT RELATIVE OF THE NAMED INSURED

At the time of the alleged accident, Alejandro Perez lived with Juan Gasca. Juan Gasca was the primary means of financial support to claimant Perez and Perez was is financial dependent. Therefore, the deductible applies to Perez as he was indisputably a dependent relative of the named insured.

In Lumbermens Mut. Cas. Co., v. Acosta, 452 So. 2d 1060 (Fla. 3d DCA 1984), the Third District Court of Appeal discussed the meaning of “dependent” in the context of Personal Injury Protection deductibles as identified in sec. 627.739, Fla. Stat. since the statute did not specifically define the term. The statute does however define the term relative, which Plaintiff in the instant case does not dispute. In Lumbermens Mut. Cas. Co., v. Acosta, the Third District held that “we construe the common adjective ‘dependent’ to have its plain and ordinary sense, see Milazzo v. State, 377 So.2d 1161 (Fla.1979), “financially dependent.” Therefore, based on the undisputed fact that Perez was Gasca’s financial dependent on the date of the accident and resided in the same household, the $1000 deductible applies to any claim filed on Perez’ s behalf.

II. THE INSURED’S PRIOR BILL IN TIME IS NON-COMPENSABLE, THEREFORE DEDUCTIBLE IS APPLICIABLE TO PLAINTIFFF’S BILL AND PLAINTIFF CANNOT MAINTAIN A CAUSE OF ACTION UNDER FLORIDA LAW

In light of the fact that the deductible applies to Perez, the Court must determine whether it applies to Plaintiff’s bill. Florida courts apply a first-come-first-serve rule for the payment of PIP benefits; payments are to be made in the order in which notice of the bill is given. See Progressive Am. Ins. Co. v. Stand-Up MRI of Orlando, 990 So. 2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a]; Simon v. Progressive Express Ins. Co., 904 So. 2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]; see also Cosme v. Fidelity Nat’l Ins. Co. 5 Fla. L. Weekly Supp. 656a (Fla. 11th Jud. Cir., App. May 8, 1998). Florida law dictates that bills are applied to the deductible “in the order they are received.” See Mercury Ins. Co. of Fla. v. Emergency Physicians of Cent. Fla., 182 So. 3d 661 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D2364a].

However, where a first submitted bill is non-compensable, the applicable deductible will not be applied to it, but rather to compensable bills as they are received. See Fla. Wellness & Rehab Ctr. of FIU v. Allstate Prop. & Cas. Ins. Co., 25 Fla. L. Weekly Supp. 371a (Fla. Miami-Dade Cty. Ct. 2017) (“any deductible could only possibly apply to expenses actually covered by the policy.”); Gen. Star Indem. Co. v. W. Fla. Village Inn, Inc., 874 So. 2d 26, 33 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D348a] (“The notion that a deductible could be applied to a loss that is not covered by the policy is fundamentally unreasonable.”). Moreover, Florida Courts have also determined that an insurer is not required to reserve or hold funds for claims that are reduced or denied. See Northwoods Sports Med. & Physical Rehab., Inc. [v. State Farm Mutual Automobile Insurance Company], 137 So. 3d 1049 [(Fla. 4DCA 2014)] [39 Fla. L. Weekly D491a]; see also Dr. Robert D. Simon v. Progressive Express Ins. Co., 904 So. 2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]; see also Gables Ins. Recovery, Inc. v. Noemi Chavez, 22 Fla. L. Weekly Supp. 1167a (Fla. Miami-Dade Cty. Ct. 2015).

Consequently, when the statute of limitations on a denied or reduced PIP claim runs, it becomes forever non-compensable, as the insurer’s decision regarding the reduction or nonpayment of such bills cannot be challenged by anyone, including an assignee. The statute of limitations begins to run from the time of the alleged breach of contract, which in the PIP context occurs thirty days from the date the insurer is furnished written notice from the provider of benefits claimed due and fails to make a required payment. State Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d 818 (Fla. 1996) [21 Fla. L. Weekly S335a]; see also Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003) [28 Fla. L. Weekly S287a] (finding the breach occurs upon an insurer’s denial of a PIP claim); MRI Assoc. of Am., LLC v. State Farm Fire and Cas. Co., 61 So. 3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b] (same). Thereafter, a provider has five years according to Florida Statute §95.11(2)(b) in which to bring a lawsuit for payment of the denied claims. See State Farm Mut. Auto. Ins. v. Warren, 805 So. 2d 1074 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D321a], approved sub nom. Warren v. State Farm Mut. Auto. Ins. Co., 899 So. 2d 1090 (Fla. 2005) [30 Fla. L. Weekly S197b] (finding thirty day bill submission requirement constitutional and stating that a provider would thereafter have five years to bring a claim for denied or reduced bills). Specifically, §95.11(2)(b) provides:

Actions other than for recovery of real property shall be commenced as follows:

…

(2) Within five years. —

…

(b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument, except for an action to enforce a claim against a payment bond, which shall be governed by the applicable provisions of paragraph (5)(e), s. 255.05(10), s. 337.18(1), or s. 713.23(1)(e), and except for an action for a deficiency judgment governed by paragraph (5)(h).

§95.11(2)(b), Fla. Stat.

The undisputed facts show that Progressive denied Transimaging’s bill due to claimant’s failure to attend two scheduled IMEs. Progressive sent an Explanation of Benefits (EOB) regarding the denial on August 2, 2012 to Transimaging. Transimaging Diagnostic’s bill became overdue thirty (30) days after receipt of the bill by Progressive, on August 29, 2012. Therefore, the statute of limitations on Transimaging’s bill began to run on August 29, 2012. Transimaging never filed suit to challenge Progressive’s determination that claimant’s unreasonable refusal to attend the IMEs, as is required by the contract, caused the bills to be non-compensable. As of August 29, 2017, the statute of limitations had run on any claim Transimaging Diagnostic could have made against Progressive for any benefits allegedly due.

Therefore, the $1000 deductible applies to the entire amount ($641.40) as it is the first received compensable bill. Even without applying a contractually elected fee schedule in Progressive’s policy, $641.40, if paid at 80% would fall well below the amount of the $1000 deductible.

Therefore, for the foregoing reasons and as detailed above, it is hereby ORDERED AND ADJUDGED that Defendant’s Renewed Motion for Final Summary Judgment is GRANTED. Defendant shall go hence forth without day. The court retains jurisdiction on the issue of attorney’s fees and costs.