26 Fla. L. Weekly Supp. 504a
Online Reference: FLWSUPP 2606MIRAInsurance — Personal injury protection — Coverage — Emergency services — Deductible — Insurer improperly processed provider’s medical bills by applying PIP deductible to the bills out of order of receipt — Standing — Language of assignment was sufficient to convey standing to plaintiff to pursue payment for treatment rendered to insured — Moreover, issue was waived where insurer’s corporate representative testified that insurer was not disputing plaintiff’s standing — Exhaustion of benefits — Statute and language of policy at issue required insurer to reserve $5000 for protected providers such as plaintiff, and any payments made to non-protected providers from the reserve fund during the thirty-day reserve period are considered gratuitous — Reasonable, related, and necessary treatment — Deposition of insurer’s corporate representative confirmed that insurer was not disputing relatedness and necessity of services provided to insured — Insurer deemed plaintiff’s charges to be reasonable as evidenced by fact that it allowed plaintiff’s bill at 100% of the charged amount pursuant to schedule of maximum charges, and insurer admitted that it determined plaintiff’s charge to be reasonable in its answer to plaintiff’s request for admissions — Summary judgment granted in favor of plaintiff
EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY a/a/o CHERRY MIRA, Plaintiff, v. USAA GENERAL INDEMNITY COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2014 33761 COCI, Division 82. June 8, 2018. David A. Cromartie, Judge. Counsel: William S. England, Bradford Cederberg, P.A., Orlando, for Plaintiff. Beth Gordon, Deerfield Beach, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORFINAL SUMMARY JUDGMENT AND DENYINGDEFENDANT’S MOTIONS FOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before this Honorable Court on Plaintiff’s Motion for Final Summary Judgment and Defendant’s Motion for Full and Final Summary Judgment and this Honorable Court having heard arguments of counsel on May 3, 2018 and being otherwise fully advised in the premises, states as follows:
I. FACTS
This is a claim for Personal Injury Protection benefits (hereinafter “PIP”) arising out of a motor vehicle collision that occurred on or about April 20, 2014. The Plaintiff in this matter is EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C., as assignee of Cherry Mira (hereinafter “Plaintiff’). At all times material to the subject cause of action, the assignor, Cherry Mira, was covered under a policy of automobile insurance by the Defendant, USAA GENERAL INDEMNITY COMPANY (hereinafter “Defendant”) which provided Personal Injury Protection coverage (“PIP”) for injuries Cherry Mira sustained in the above-referenced accident. The Plaintiff rendered emergency service and care to the assignor, Cherry Mira, on April 20, 2014, in the emergency department of St. Joseph’s Hospital following the above referenced collision. On April 20, 2014, EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C. (“EMATB”) obtained an assignment of benefits from Cherry Mira in consideration and in exchange for the emergency services and care provided by EMATB to Cherry Mira on April 20, 2014. Defendant alleges that the policy of automobile insurance at issue included a PIP deductible in the amount of $1,000.00 and that the PIP deductible was applicable to the claim of Cherry Mira.
The chronological order of Defendant’s receipt of the medical bills for the medical services rendered to Cherry Mira as a result of the April 20, 2014 loss at issue is undisputed. The first three medical bills received by Defendant under Ms. Mira’s claim for PIP benefits were from Associate Pathology, totaling $250.00, and all three were received on May 1, 2014. Defendant approved all three bills in the total amount of $250.00 for all three bills and applied all three to the Insured’s $1,000 deductible, leaving a remaining deductible balance of $750.00. The fourth medical bill received by Defendant under Ms. Mira’s claim for PIP benefits was received by Defendant on May 2, 2014, and was from St. Joseph’s Hospital in the amount of $24,663.11. Defendant allowed the hospital bill in the amount of $12,314.00, did not apply any of the Insured’s remaining $750.00 deductible, and instead paid the hospital $9,851.20 on June 1, 2014. The payment to St. Joseph’s by Defendant on June 1, 2014 exhausted the insured’s $10,000 benefits.
After the hospital bill was received, but before it was processed and paid, Defendant received Plaintiff’s bill on May 6, 2014 for $936.00. Chronologically, Plaintiff’s bill was the fifth medical bill received by Defendant under Ms. Mira’s claim for PIP benefits, and was the fourth bill processed by Defendant. The Plaintiff’s bill was received by Defendant within thirty (30) days of Defendant receiving notice of the accident on April 21, 2014. Defendant allowed the full $936.00 amount of Plaintiff’s charges based upon fee schedule and applied the remaining $750.00 deductible to Plaintiff’s bill prior to processing the St. Joseph Hospital bill. Defendant then issued partial payment to Plaintiff in the amount of $148.80. It is further undisputed that Plaintiff qualifies for the $5,000.00 reserve pursuant to Florida Statute 627.736(4)(c) and pursuant to Section C. Found on Page 13 of 34, under the Limit of Liability portion of the insured’s policy of insurance. Defendant’s contract with the insured specifically sets forth that Defendant shall reserve $5,000 of PIP benefits for payment to emergency room physicians like the Plaintiff, and that after the thirty (30) day window, Defendant would only release the amounts from the reserve for which Defendant did not receive notice of such claims.
II. ISSUES TO BE DETERMINED BY THE COURT
The issues presented by the parties for determination by this Court on competing motions for final summary judgment are as follows: 1) whether Defendant improperly processed medical bills by applying an alleged PIP deductible to said medical bills out of order of receipt in derogation of Fla. Stat. §627.736 and Fla. Stat. §627.739; 2) whether the Plaintiff has standing and Defendant has waived it right to contest Plaintiff’s Standing; 3) whether Defendant properly exhausted benefits under the instant claim; and 4) whether relatedness and necessity of the services provided to Cherry Mira by Plaintiff as well as reasonableness of Plaintiff’s charges are resolved.
III. ANALYSIS AND RULING
A. Defendant Improperly Processed Medical Bills by Applying an Alleged PIP Deductible to Said Medical Bills Out of Order of Receipt in Derogation of Fla. Stat. §627.736 and Fla. Stat. §627.739
The Fifth District Court of Appeals has ruled on seven (7) different occasions, that medical bills must be applied to an insured’s elected deductible “in the order of receipt”. Mercury Insurance Company of Florida v. Emergency Physicians of Central, 182 So.3d 661 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D2364a]. Progressive Am. Ins. Co. v. Emergency Physicians of Cent. Fla., 186 So.3d 1136 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D714a]; Progressive Am. Ins. Co. v. Emergency Physicians of Cent. Fla., 187 So.3d 898 (Fla. 5th DCA Mar. 4, 2016) [41 Fla. L. Weekly D564a]; USAA Gen. Indem. Co. v. Emergency Physicians Cent., 186 So.3d 588 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D435e]; Progressive Select Ins. Co. v. Fla. Emergency Physicians. 183 So.3d 489, 489 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D335b]; Metro. Cas. Ins. Co. v. Emergency Physicians of Cent. Fla., LLP, 178 So.3d 927, 928 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D2497b]; and Progressive Exp. Ins. Co. v. Emergency Physicians of Cent., 187 So.3d 1278 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D888b]. The Court looks to the line of cases following Mercury from the Fifth District Court of Appeals in concluding that USAA’s position is incorrect. The Fifth District Court of Appeals wrote, “in [Mercury], this Court held that all claims, including EPCF’s priority claim, are properly applied to a personal injury protection deductible in the order that they are received.” See Progressive American Insurance Company v. Emergency Physicians of Central Florida, etc., 187 So.3d 898, 899 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D564a]. In Progressive, the Fifth District Court of Appeals clarified its holding in Mercury, which leads this Court to find that Defendant’s method of processing compensable medical bills out of order is in derogation of binding law.
B. Plaintiff has standing to maintain the instant lawsuit seeking PIP benefits
On August 13, 2014, Plaintiff submitted a Notice of Intent to Initiate Litigation (hereinafter “Demand Letter”) to Defendant. The Demand Letter included a three page document entitled Conditions of Admission and Treatment (Hereinafter “Assignment”). On September 17, 2014, Defendant responded to Plaintiff’s Demand Letter. In its Motion for Summary Judgment, Defendant argues that the Assignment does not provide Plaintiff with Standing to enforce the policy of insurance at issue or file a cause of action for same.
The relevant language is set forth in multiple lengthy paragraphs, but for purposes of brevity, the Court can focus of the following excerpts:
As a condition of my and/or guardian’s/child’s (“I, me”) admission and treatment to my health care facility owned, operated, and/or affiliated with Bay Care Health System, St. Joseph’s Health Care Center, South Florida Baptist Hospital, Morton Plant Mease Health Care, St. Anthony’s Hospital, Winter Haven Hospital, Bay Care Alliant Hospital, Bay Care Laboratories, Bay Care Outpatient Imaging, and/or Bay Care Outpatient Centers, (Individually each and collectively all, the “Facility”). I hereby agree to the following:
3. NO LEGAL RELATIONSHIP BETWEEN FACILITY AND PROVIDERS: I recognize that most physicians and independent contractors providing services to me, including but not limited to, my treating physician/surgeon, radiologists, pathologists, cardiologists, emergency physicians, anesthesiologists, staff physicians, contract physicians, physicians assistants, advanced registered nurse practitioners, certified nurse midwives, per fusionists, and others who may provide care and/or treatment to me during my Facility visit (individually each, and collectively all, the Provider(s)”), are not employees or agents of the Facility. The Providers have been granted the use of the Facility for the care and treatment of their patients, but they may not be employees or agents of the Facility.
17. ASSIGNMENT OF BENEFITS: I hereby assign to Facility and/or the Provider (as applicable), all of my rights, benefits, privileges, protections, claims, causes of action, interests or recovery, to any and all rights, benefits, privileges, protections, claims, causes of action, interests, or recovery of any type whatsoever receivable by me or on my behalf arising out of any policy of Insurance, plan, trust, fund, or covering providing health care coverage of any type to me (or to any other third party responsible for me) for the charges for services rendered to me from the Facility and/or Provider (as applicable). This includes, without limitation, any private or group health/hospitalization plan, automobile liability, general liability, personal injury protection, medical payments, uninsured or underinsured motor vehicle benefits, settlements/judgments/verdicts, self-funded plan, trust, MEWA, collective, or any other third-party payor (collectively) “Coverage source”). I also authorize direct payment to Facility and/or the Provider (as applicable) of all benefits, payments, monies, checks, funds, wire transfers or recovery of any kind whatsoever. I also agree any payments of any kind (e.g., checks, funds, payments, monies, benefits or recovery for coverage of services by Facility and/or Provider (as applicable) that is sent directly to me (or to another third party responsible for me) will be sent immediately to Facility and/or Provider (as applicable) through whatever means necessary. This includes, without limitation, endorsing over any checks and/or other documents to the Facility and/or Provider (as applicable). I also agree to assist the Facility and/or Provider (as applicable) in pursing payment from my Coverage Source. This includes, without limitation, signing documents requested or needed to pursue claims and appeals, get documents from Coverage Source, or otherwise to support payment to the Facility and/or Provider (as applicable). I also understand that I am financially responsible for charges not paid accordingly to this assignment, to the extent permitted by state and federal law.
18. AUTHORIZED REPRESENTATIVE: I hereby authorize and designate the Facility and/or the Provider (as applicable) as my authorized representative to act on my behalf with respect to all matters related to all of my rights, benefits, privileges, protections, claims, causes of actions, interests or recovery arising out of any policy of insurance, plan, trust, fund, or coverage providing health care coverage of any type to me (or to any other third party responsible for me). This includes, without limitation, filing claims and appeals, receiving all information, documentation, summary plan descriptions, bargaining agreements, trust agreements, contracts and other Instruments under which the plan is established or operated, as well as receiving any policies, procedures, rules, guidelines, protocols, or other criteria considered by the Coverage Source, in connection with any claims, appeals, or notifications related to claims or appeals.
This Court is guided by USAA Gen. Indemn. Co. v. Emergency Med. Assocs of Tampa Bay a/a/o Nathan Sanders, Case No. : 2016-10032 APCC, (7th Jud. Cir., Volusia Co., November 3, 2017), wherein the Seventh Circuit, acting in its appellate capacity affirmed the trial court’s holding that the above language conveys standing to the emergency room physicians. Further, the Defendant’s Corporate Representative testified that Defendant was not disputing Plaintiff’s standing to pursue the claim at issue. There is no dispute that Plaintiff was the emergency room physicians that rendered treatment to the insured on the date of service at issue in this matter. This Court interprets the assignment to designate Plaintiff as a “Provider” based upon the facts and evidence of this case and the treatment rendered by Plaintiff to the insured. This Court finds that Plaintiff has standing to pursue this cause of action and that Defendant has waived it right to dispute Plaintiff’s standing.
C. Florida Statute 627.736(4)(c) and the contract at issue required Defendant to reserve the claimed amount by a protected provider and Defendant’s failure to comply with Florida Statute 627.736(4)(c) creates an exception to a Benefits Exhausted Defense
Defendant argues that it properly exhausted benefits to St. Joseph’s, and the hospital could have recorded a lien for the unpaid portion, which would have taken precedence over Plaintiff’s claim under Fla. Stat. 627.736(4)(c). Defendant cited three cases in support of its Motion for Summary Judgment based on Exhaustion of Benefits: (i) Simon v. Progressive Express Ins. Co., 904 So. 2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]; (ii) Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So. 2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a]; and (iii) Northwoods Sports Medicine and Physical Rehabilitation v. State Farm Mutual Automobile Insurance Company 2014 WL 837091 (Fla. 4th DCA, March 5, 2014) [39 Fla. L. Weekly D491a]. Defendant argues that Simon, Stand-Up, and Northwoods hold for the proposition that the insurer is not required to maintain a reserve and that once an insurer pays up to the contractual limits, its potential liability is extinguished. Defendant further contends that it was not required to reserve any funds past the thirtieth day of Defendant receiving notice of the accident at issue. Defendant argues that it has not acted in “bad faith” and likewise has not issued “gratuitous payments”, both of which would qualify as exceptions to an exhaustion of benefits defense.
Plaintiff contends that there are four recognized exceptions to exhaustion of benefits. Specifically, improper claims handling, gratuitous payments, Florida Statute 627.736(4)(c), and bad faith conduct by an insurer. Plaintiff contends that by processing the medical bills out of sequence, that Defendant has engaged in improper claims handling and bad faith by virtue of the seven Fifth District Court of Appeal cases addressed above. Plaintiff further argues that Defendant issued gratuitous payments and acted in bad faith by releasing “reserve” funds protected under the policy and Florida Statute 627.736(4)(c) to non-protected providers. Finally, Plaintiff argues that Florida Statute 627.736(4)(c) creates a statutory exception to exhaustion of benefits for protected providers who qualify.
In order to resolve this issue, the Court must analyze two important provisions. First, The seminal legislative language at issue is set forth in Florida Statute 627.736(4)(c), reads as follows:
Upon receiving notice of an accident that is potentially covered by personal injury protection benefits, the insurer must reserve $5,000 of personal injury protection benefits for payment to physicians licensed under chapter 458 or chapter 459 or dentists licensed under chapter 466 who provide emergency services and care, as defined in s. 395.002, or who provide hospital inpatient care. The amount required to be held in reserve may be used only to pay claims from such physicians or dentists until 30 days after the date the insurer receives notice of the accident. After the 30-day period, any amount of the reserve for which the insurer has not received notice of such claims may be used by the insurer to pay other claims. The time periods specified in paragraph (b) for payment of personal injury protection benefits are tolled for the period of time that an insurer is required to hold payment of a claim that is not from such physician or dentist to the extent that the personal injury protection benefits not held in reserve are insufficient to pay the claim.
The second provision is set forth within the policy of insurance. Specifically, on page 13 of 34 of Policy form 5100FL(02), Section C within the Limits of Liability section of the Defendant’s policy of insurance, which reads as follows:
We will reserve $5,000 of PIP benefits for payment to physicians licensed under chapter 458 or chapter 459 or dentists licensed under chapter 466 who provide emergency services and care, as defined in s. 395.002, or who provide hospital inpatient care. The amount held in reserve will be used only to pay claims from such physicians or dentists until 30 days after the date we receive notice of the accident. After the 30-day period, any amount of the reserve for which we have not received notice of such claims may be used to pay other PIP benefits for loss or expense incurred because of the accident.
The Legislature is presumed to know existing law and judicial construction of statutes when it enacts a statute, amends a statute, or reenacts a statute. Holmes County Sch. Bd. v. Duffell, 651 So.2d 1176 (Fla. 1995) [20 Fla. L. Weekly S110a]; Prof’l Consulting Servs., Inc. v. Hartford Life and Accident Ins. Co., 849 So.2d 446 (Fla. 2d DCA 2003) [28 Fla. L. Weekly D1661a]; State Farm Fire & Cas. Co. v. Kambara, 667 So.2d 831, 833 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D156c]; Collins Inv. Co. v. Metro. Dade County, 164 So.2d 806, 809 (Fla. 1964); and Essex Ins. Co. v. Zota, 985 So.2d 1036, 1043 (Fla. 2008) [33 Fla. L. Weekly S425b].
In 2008, the Florida legislature amended the PIP statute to add section 627.736(4)(c). Section (4)(c), for the first time, created a statutory priority that requires payment and a mandatory reserve for a small group of protected medical providers such as first responders. That protected class consists of providers licensed under chapters 458 or 459 who provide emergency services under F.S. 395.002(9), whose bills are received by a PIP insurer within thirty days of the insurer receiving notice of an accident potentially covered by PIP (these protected providers were otherwise not required by the PIP statute to submit their claim in any number of days).
Until the effective date of Florida Statute 627.736(4)(c) in 2008, insurers had no prior obligation to reserve benefits for any class of medical provider under the PIP statute. Simon v. Progressive Express Ins. Co., 904 So. 2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]; Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So. 2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a]. In 2005, Simon held:
We decline to create a requirement that an insurance company set aside a “reserve” fund for claims that are reduced or denied. Simon does not contend that the denial or reduction of its claim was in bad faith, or that Progressive had manipulated, or acted improperly, in reducing it. If we were to accept Simon’s theory that a “reserve” or “hold” provision must be automatically applied to any available funds at the time a claim is submitted, it would result in unreasonable exposure of the insurance company and would be to the detriment of the insured and other providers with properly submitted claims. Under such a theory, all potential payments to a service provider that were denied, or were subject to a reduction, would have to be held in reserve until the statute of limitations period expired or a suit was filed and concluded. This would delay and reduce availability of funds for the payment of claims to other providers and would be inconsistent with the PIP statute’s “prompt pay” provisions.
The Legislature, aware of the 2005 holding in Simon, drafted section (4)(c) in 2008 in an effort to carve out a small group of protected providers for which a priority claim would exist, for which a reserve would apply, and for which payment was required to be made by the insurer. Section (4)(c) created a statutory anomaly in the manner in which it treats unprotected providers relative to their unprotected counterparts. Because section (4)(c) fundamentally alters the accustomed norm, an analysis of the functional initiative of (4)(c), its effect on reimbursements and the processing of claims, and its pragmatic application requires an adept understanding of section (4)(c) and its interplay with other provisions of the PIP statute. Section (4)(c) is intended to protect against the financial constraints placed on emergency medical providers as a result of the Federal EMTALA law (42 U.S.C.A. §1395dd) and Florida’s Access to Emergency Services and Care Law (F.S. §395.1041), both of which require that emergency medical providers render services regardless of a patient’s ability to pay, or face severe consequences. Additionally, (4)(c) is intended to help compensate providers, who, for the most part, are unable to shift losses associated with significant amount of legislatively induced uncompensated care, to benefit the residents of Florida by alleviating reliance on state funding for uncompensated emergency room care, and insuring emergency room treatment is available and adequate to meet the needs of the residents of Florida. The legislature’s reliance on the Simon opinion for guidance in the creation and passage of section (4)(c) is not unique to PIP as the legislature has a history of relying on judicial interpretations of statutes when enacting, amending, and reenacting statutes. See Kambra at 833 and Zota at 1043.
This Court finds guidance from the Seventh Circuit Court of Appeals, Volusia County Court Orders, and the Ninth Judicial Circuit. In the Seventh Circuit, various Judges have held that Florida Statute 627.736(4)(c) created an exception to benefits exhausted. Emergency Medical Associates of Tampa Bay, L.L.C., a/a/o Joyce Halverson v. Auto-Owners Insurance Company, 7th Cir., CASE NO.: 2013 31886 COCI (Judge Kelly, January 22, 2018); Emergency Medical Associates of Tampa Bay, L.L.C., a/a/o Morgan Tessenear v. USAA General Insurance Company, 7th Cir., CASE NO.: 2015-SC-10419-0 (Judge Green, November 2, 2017); Orthopaedic Clinic of Daytona Beach, P.A., a/a/o Charles Murray v. State Farm Mutual Auto. Ins. Co., 17 Fla. L. Weekly Supp. 1145a (Fla. 7th Jud. Cir. Volusia Co. 2010)(Judge Henderson, July 15, 2010)(Holding that the required $5,000 reserve is an exception to an exhaustion of benefits defense, even in light of a properly recorded hospital lien); Orthopaedic Clinic of Daytona Beach, P.A. a/a/o William Futch v. State Farm Mutual Auto. Ins. Co., Case No.: 2010 31889 COCI (Fla. 7th Jud. Cir. Volusia Co. 2011)(Judge Sanders, July 15, 2010); and Emergency Physicians, Inc. d/b/a Emergency Resources Group, as assignee of Thomas Losoncy, v. Auto-Owners Insurance Company, 24 Fla. L. Weekly Supp. 832b (Fla. 7th Jud. Cir. Volusia Co. 2010)(Judge Green, December 6, 2016). This Court adopts the logic and reasoning of these opinions.
Further, the Ninth Circuit Court of Appeal has set forth similar logic and reasoning as set forth in Auto-Owners Insurance Co. v. Florida Emergency Physicians, Kang & Associates M.D. P.A., a/a/o Nicole Lockeywerner, Appellate Case No: 2014-000067-A-O, (Fla. 9th Jud. Cir., Appellate Capacity, Orange County, 2016) [23 Fla. L. Weekly Supp. 513a], wherein the Ninth Circuit held that an insurer cannot release more from the reserve than what it has received notice of a “claim”. The claim by Plaintiff in this matter was $936.00. A “claim” in a PIP case is the amount to which the provider believes it is entitled to be paid by the insurer as evidenced on the CMS-1500 form. See section 627.736(5)(d), Fla. Stat. (2014); see also Utica Mut. Ins. Co. v. Pennsylvania Nat. Mut. Cas. Ins. Co., 639 So. 2d 41, 46-47 (Fla. 5th DCA 1994) citing Webster’s Ninth New Collegiate Dictionary (A “claim” is defined as “a demand for something due or believed to be due (insurance).”). The Ninth Circuit stated in pertinent part:
Section 627.736(4)(c), in addition to requiring insurers to set aside $5000.00 to pay emergency service providers, states, “After the 30-day period, any amount of the reserve for which the insurer has not received notice of a claim from a physician or dentist who provided emergency services and care or who provided hospital inpatient care may then be used by the insurer to pay other claims (emphasis added). The emphasized language specifically instructs insurers that only the amount in the reserve that has not been claimed may be used to pay other claims after the thirty days has run. The corresponding action is that the amount in the reserve that has been “claimed” (not necessarily paid out), within the thirty days, may not be used to pay other claims. If the insurer were not required to hold the disputed portion of a claim submitted within the thirty days in reserve, then the emphasized language would be unnecessary. Using “claim” indicates that it is the claimed amount that is held in reserve, not an undisputed amount or any amount that the insurer deems reasonable.
Lockeywerner, is not the only opinion that holds that Benefits Exhausted is not a defense to a protected providers bill. See also United Services Automobile Association v. Emergency Physicians of Central Florida. LLP, as assignee of Barbara Maughan, Ninth Judicial Circuit Appellate Case No. 2012-AP-1 (January 30, 2014) [23 Fla. L. Weekly Supp. 302b].
The legislature, cognizant of this dilemma, added a provision that tolled the thirty days payment requirement under (4)(b) as it relates to claims from unprotected providers. The tolling provision is invoked when the only benefits remaining available, are in the reserved $5,000 partition. In such a situation, unprotected claims are tolled and do not become overdue while the insurer is required to reserve the $5,000. After the expiration of the thirty day reserve under (4)(c), the insurer then has thirty days to process claims under (4)(b) without suffering a penalty. This Court agrees with Plaintiff that the policy language and Florida Statute 627.736(4)(c) create an exception to exhaustion of benefits, as any payments made to unprotected providers, when the only benefits remaining under the PIP policy are required to be held in the (4)(c) reserve fund are gratuitous in nature, based upon the mandatory reserve of the claimed amount. The Defendant entered into a contract promising to reserve $5,000 and only release the portion of the reserve the funds for which it did not receive a claim for. Defendant was required to comply with its contractual obligation.
D. Relatedness and Necessity of the Services Provided to Cherry Mira by Plaintiff as well as Reasonableness of Plaintiff’s Charges are Resolved
It is Plaintiff’s position that Defendant’s actions in this claim dictate that these items are no longer at issue and are resolved. In support of its position, Plaintiff argues that Defendant 1) during the deposition of Defendant’s Corporate Representative it was confirmed that Defendant was not disputing whether the services were related and medically necessary; 2) Defendant deemed the Plaintiff’s charges to be reasonable as Defendant allowed Plaintiff’s bill at 100% of the charged amount pursuant to the Schedule of Maximum Charges; and 3) Defendant admitted that it determined Plaintiff’s charge to be reasonable in its answer to Plaintiff’s Request for Admissions. It is the Defendant’s position that although it allowed Plaintiff’s charges in full and applied the full amount of Plaintiff’s bill to the alleged deductible, it can nonetheless challenge the causal relatedness and medical necessity of the services provided by the Plaintiff as well as the reasonableness of Plaintiff’s charges for those services at Summary Judgment. Defendant cites to Florida Statute 627.736(4)(b) to support its contention that an insurer can always challenge relatedness of services, medical necessity of services and reasonableness of a provider’s charge.
At Summary Judgment, Defense Counsel made an ore tenus Motion for Relief from Admissions as to Request numbered 18, in order to change the admission to a denial. This Court denied Defense Counsel’s ore tenus Motion finding the change to be prejudicial to Plaintiff. Further, this Court finds that an insurer is not permitted to challenge the causal relatedness and medical necessity of the services provided by the Plaintiff as well as the reasonableness of Plaintiff’s charges after testifying under oath that it was not disputing those factors.
IV. CONCLUSION
The Court finds that no genuine issues of material fact remain. The Court finds that all issues have been disposed of by the Court, including but not limited to, any and all issues raised by the parties in the pleadings. Upon competing motions for final summary judgment, the Court finds that Plaintiff is entitled to Final Summary Judgment as a matter of law.
IT IS HEREBY ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for Final Summary Judgment is hereby GRANTED.
2. Defendant’s Motions for Full and Final Summary Judgment is hereby DENIED.
3. Final Judgment is hereby GRANTED in favor of the Plaintiff, EMERGENCY MEDICAL ASSOCIATES OF TAMPA BAY, L.L.C., as assignee of Cherry Mira, wherein Plaintiff shall recover from Defendant, USAA GENERAL INDEMNITY COMPANY, the sum of $600.00, plus 4.75% pre-judgment interest for which sum let execution issue.*
4. The Court finds Plaintiff is entitled to its reasonable attorneys’ fees and costs. The Court reserves jurisdiction to determine the amount of attorneys’ fees and costs to Plaintiff pursuant to Fla. Stat. §§627.736, 627.428 and 57.041.
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*Post-judgment interest of 5.35% per annum shall accrue on this judgment pursuant to Fla. Stat. § 55.03.
