26 Fla. L. Weekly Supp. 852a
Online Reference: FLWSUPP 2610STAFInsurance — Personal injury protection — Coverage — Medical expenses — Where PIP policy provides that charge submitted for amount less than 200% of allowable amount under Medicare Part B fee schedule shall be paid in amount of charge submitted, insurer was required to pay entire amount of charges that were less than 200% of allowable amount under fee schedule, not 80% of those charges — Affirmative defenses — Amendment — Motion to amend affirmative defenses to allege failure to strictly comply with presuit demand letter requirement is denied — Action for declaratory relief is not “action for benefits” to which demand letter condition precedent applies, and attempt to inject new defense at summary disposition hearing is untimely and inequitably prejudicial
LAUDERDALE CHIROPRACTIC CENTER, INC., (a/a/o Jessie Stafford), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-005623 CONO (70). November 28, 2018. John D. Fry, Judge. Counsel: Thomas J. Wenzel, Cindy A. Goldstein, P.A., Coral Springs, for Plaintiff. George L. Cimballa III, Law Office of George L. Cimballa III, Plantation, for Defendant.
ORDER GRANTING SUMMARY JUDGMENT
THIS CAUSE having been reviewed by the Court on Plaintiff’s motion for summary judgment and various other motions filed by both parties, having heard arguments on November 9, 2018 in this case and nearly 60 other cases, the Court having reviewed the Court file, and the Court otherwise being advised in the premises, the Court hereby finds and Orders and Adjudges as follows,
I. “Billed Amount (BA) Issue”
This Court previously addressed this issue in the matter of Doctor’s Pain Management Group, Inc. (a/a/o Roberto Borrego) v. Geico General Ins. Co., Case No.: 16-04998 CONO 70 (Fla. Broward Cty. Ct. June 12, 2018) [26 Fla. L. Weekly Supp. 429a]. The Court finds no reason to depart from its prior ruling. GEICO is contractually obligated to pay 100% of the charges that are submitted by a provider in an amount less than 200% of the Medicare Part B Fee Schedule applicable to the service, care, or supply.
The amount owed due do this issue was detailed in Plaintiff’s motion. Plaintiff’s calculations amounted to $65.00 outstanding in benefits. The Court agrees and finds that Plaintiff’s breach of contract damages equal this amount.
II. Defendant’s Motion to Amend
In response to Plaintiff’s motion for summary judgment, Defendant filed a motion seeking leave to amend its answer to include an affirmative defense alleging that Plaintiff failed to strictly comply with the presuit demand letter requirement of Fla. Stat. §627.736(10). However, presuit demand provision states that it is “a condition precedent to filing any action for benefits under this section”. This lawsuit was filed seeking declaratory relief pursuant to Fla. Stat. ch. 86, which is equitable in nature. It is not an “action for benefits” and therefore Fla. Stat. §627.736(10) does not apply.
Moreover, the Court finds that Defendant’s attempt to inject a condition precedent defense at the summary disposition hearing is untimely and inequitably prejudicial. Defendant was aware of the availability of this Defense from the time it received service of Plaintiff’s complaint. Defendant offered no credible reason to address the delay for raising a procedural defense after the significant judicial and litigant efforts has occurred in this case. Failure to satisfy a condition precedent is a “procedural defense” which would ordinarily be curable through abatement or dismissal. But, in this case, Defendant sat on its hands for a significant amount of time in order to strategically spring this Defense at a summary judgment hearing. Defendant essentially wants a third bite at the apple, even though it has known about the “BA Issue” being litigated the entire time.
Several cases have held that a Defendant waives an insufficiently or untimely pled condition precedent affirmative defense. See Vondrasek v. City of St. Petersburg, 777 So. 2d 989 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D2123a] (where City failed to plead a condition precedent with particularity, but “had all of the factual information it needed to assess this legal issue when it filed its answer, the City waived this legal issue when it failed to provide a timely, specific denial”); Bank of Am. v. Asbury, 165 So. 3d 808 (Fla. 2d DCA 2015) [40 Fla. L. Weekly D1230a]; and Cesar Cevallos and Amira Trujillo v. Mercury Ins. Co. of Fla., 2016-SC-2228 (Fla. 9th Cir. Ct. August 18, 2009).
Plaintiff raised numerous legal theories in opposition to the motion to amend and also requested leave to amend its complaint in the event that the Court granted leave so it could challenge the constitutionality of the demand letter provision. However, the Court need not address Plaintiff’s other legal theories and motion for leave at this time as they are all mooted by the Court’s ruling.
III. Remaining issues in this case
The parties also made the Court aware that there are other legal or factual issues remaining in this case. The parties shall coordinate a hearing to take place within thirty (30) days of this order to address the remaining issues. Defendant shall, within seven (7) days from the date of this order, file with the Court and serve on Plaintiff documents evidencing that a deductible applies to this claim and this insured as well as documents evidencing how the deductible was applied in this case.
