26 Fla. L. Weekly Supp. 530a
Online Reference: FLWSUPP 2606MPORInsurance — Personal injury protection — Discovery — Depositions — Where case presents pure issues of law as to whether medical provider correctly coded services, provider’s motion to compel deposition of insurer’s corporate representative is denied and insurer’s motion for protective order is granted
SOMERSET CHIROPRACTIC CENTER, a/a/o Maya Portal, Plaintiff, v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial District in and for Broward County. Case No. COCE-16-024815 (52). August 13, 2018. Giuseppina Miranda, Judge. Counsel: Sisy A. Mukerjee, Mukerjee Law Group, P.A. Coral Springs, for Plaintiff. Raul L. Tano, Shutts & Bowen LLP, Miami, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION TO COMPEL THEDEPOSITION OF DEFENDANT ADJUSTER AND GRANTINGDEFENDANT’S MOTION FOR PROTECTIVE ORDER
THIS CAUSE, having come before the Court on July 30, 2018 on Plaintiff’s Motion to Compel the Deposition of Defendant Adjuster and Defendant’s Motion for Protective Order1, the Court having reviewed the motions, heard argument of counsel, and being otherwise fully advised on the premises, this Court makes the following findings of fact and conclusions of law:Material Facts
On November 16, 2016, the Plaintiff filed a single-Complaint Complaint over PIP benefits payments in connection with an automobile accident. Although the Complaint alleges that the dates of service at issue in this lawsuit are June 6, 2016 through July 11, 2016, the Defendant contends that the sole issue presented in this litigation is whether or not certain services were coded properly on date of service July 11, 2016.2 Defendant answered the Complaint and asserted six (6) affirmative defenses, of which five allege Plaintiff improperly coded its bills in violation of multiple sections of Fla. Stat. §627.736.
Plaintiff argues that several of the affirmative defenses include issues of fact that would necessitate further discovery, including the deposition of Defendant’s corporate representative.
Defendant objected to the deposition and asserts that five of the six affirmative defenses3 relate to the upcoding and unbundling defenses and these defenses involved the interpretation of the relevant statutes. policy language and coding policies and procedures; and would ultimately, be dispositive of the entire case.
The parties filed the instant motions.Legal Analysis and Conclusions of Law
This Court has discretion to fashion orders to govern the conduct of discovery. Fla. R. Civ. P. 1.200(a)(4) (noting Court may limit and/or schedule discovery); Deltona Corp. v. Bailey, 336 So. 2d 1163, 1169-1170 (Fla. 1976) (noting Court has discretion to stay discovery for reasonable time-period pending determination of material, outstanding motions, and noting that federal case law interpreting the rules is persuasive since Florida law is closely patterned after the Federal Rules of Civil Procedure).
Over Plaintiff’s objection, this Court specifically finds that this case presents pure issues of law to be adjudicated by way of summary judgment, requiring no fact discovery. See Jones v. Utica Mut. Ins. Co., 463 So. 2d 1153, 1157 (Fla. 1985); see also State Farm Mutual Automobile Insurance Company v. R.J. Trapana, M.D.,. P.A. (a/a/o Noemi Marquez), 23 Fla. L. Weekly. Supp. 98a (Fla. 17th Cir. Ct. (App.) 2016) (“Trapana”). To determine whether Plaintiff inappropriately coded the services on date of service July 11, 2016, the Court may examine the PIP Statute, Physician’s Current Procedural Terminology (CPT), and American Medical Association Current Terminology Editorial Panel, as well as other resources incorporated by reference into the statute, such as the CPT Manual.4 See id. Any disagreement between Plaintiff and Defendant regarding the issue presented in this case will not be based on issues of material fact but rather their respective interpretations of the relevant portions of the statute and authorities. Court this finds that the Record does not reveal a conflict in the facts, but a conflict in the ultimate legal conclusions presumably reached by each respective party. Accordingly,
IT IS HEREBY ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion to Compel the Deposition of Defendant Adjuster is DENIED. Defendant’s Motion for Protective Order is GRANTED. Depositions are stayed. The Court finds that sufficient legal issues exist that would necessitate ruling upon while the stay is in place. This Court finds that staying discovery will promote the most efficient manner in which to proceed at this time.
2. Defendant shall file its motion(s) for summary judgment within sixty (60) days from the date of this Order.
3. Plaintiff may seek take the depositions of any witnesses’ utilized in connection with any supporting affidavits to Defendant’s Motion for Summary Judgment upon leave of Court, after good cause shown.
4. This Court reserves ruling as to whether the Defendant’s unfiled motion(s) for summary judgment will be completely dispositive of the case. Once the motion(s) and response(s) are filed and ruled upon, the Court may lift the stay on discovery, if the Court determines that factual issues still remain.
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1Defendant’s motion was not formally noticed for hearing, but the parties agreed that the motion was filed in direct response to Plaintiff’s Motion to Compel and the Court found the Defendant’s Motion for Protective Order inextricably intertwined with the Plaintiff’s noticed motion and ruled on both motions.
2On May 1, 2017, this Court entered an Order upon a sua sponte Order to Show cause as to why this case should not be transferred out of Broward County. The Court entered an order finding sufficient connection to Broward County on the basis that “the sole issue is whether reimbursement should have been down coded: policy question/legal issue.”
3The First Affirmative Defense pled by Defendant requires no further litigation by the parties because it asserts that Allstate’s policy language provides legally sufficient notice of Allstate’s election to reimburse based on fee schedule limitations. The issue has been decided by Florida’s Supreme Court in Allstate’s favor. See Allstate Insurance Company v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a]. This affirmative defense; however, is not dispositive of the instant case.
4The Court notes that this list is not exhaustive and may include other materials that, while not binding, can be used as a guide to clarify the information contained within the CPT Manual. See Trapana, citing to Madock v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 408b (Fla. 13th Cir. Ct. Mar. 3, 2004).
