26 Fla. L. Weekly Supp. 433a
Online Reference: FLWSUPP 2605SOUTInsurance — Personal injury protection — Discovery — Motion for rehearing of order granting insurer’s motion for protective order regarding discovery related to proper application of policy deductible is denied — Amount pled in complaint, insurer’s undisputed calculation of amount at issue, and medical provider’s statement that it was disputing whether statutory fee schedule was properly incorporated in policy show that complaint does not encompass claim for damages for improperly applied deductible
SOUTH BROWARD HOSPITAL DISTRICT D/B/A MEMORIAL HOSPITAL MIRAMAR, a/a/o Henry Alvarado, Plaintiff, v. ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE16-021178 (49). March 13, 2018. Nina W. Di Pietro, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. Raul L. Tano, Shutts & Bowen, Miami, for Defendant.
ORDER DENYING PLAINTIFF’SMOTION FOR REHEARING
THIS CAUSE having come on to be considered on March 12, 2018, regarding Plaintiff’s Motion for Rehearing, the Court having reviewed said Motion and the court file, and being otherwise advised in the Premises, the Court finds as follows:
On October 4, 2017, Plaintiff propounded the following discovery on Defendant: 1. Supplemental Interrogatories (Re: Deductible); 2. Supplemental Request to Produce (Re: Deductible); and 3. Supplemental Request for Admissions (Re: Deductible). On October 10, 2017, Defendant filed its Motion for Protective Order (hereinafter “Defendant’s Motion”). On January 10, 2018, counsel for the parties presented arguments regarding Defendant’s Motion and at the close of the hearing, the Court granted Defendant’s Motion. On January 22, 2018, Plaintiff filed the instant Motion for Rehearing.
Plaintiff’s Motion for Rehearing states that the Court on January 10, 2018 did not take into consideration the case of Digital Medical Diagnostics a/a/o Jesus Gaber v. United Automobile Ins. Co., 958 So.2d 505 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D1392a]. That case stands for the proposition that the deductible provision in a policy of insurance is not a defense that must be raised as an affirmative defense as it is a basic part of the policy of insurance. Id. The Court does not find that case to be instructive for this matter. Here, Plaintiff’s Complaint states, “Defendant owes Plaintiff approximately $2,154.00, or remaining policy benefits. . .”. At the hearing on Defendant’s Motion, counsel for Defendant presented the Court with a calculation for the above amount pled in Plaintiff’s Complaint, which equated to the difference between 80% of Plaintiff’s billed amount and the amount already paid by Defendant (80% of fee schedule for the CPT codes at issue). Plaintiff’s counsel did not dispute, or provide a different explanation for, Defendant’s counsel’s calculation. In fact, upon inquiry by the Court, Plaintiff’s counsel stated that he had not reviewed the Explanations of Benefits/Review and therefore did not have personal knowledge as to whether a deductible was even applied to his client’s bills. Finally, on October 25, 2016, Plaintiff filed (but never sought an order regarding) a Motion to Stay Pending Appeal asking for the Court to stay the case until the Supreme Court of Florida ruled on the issue of whether Defendant’s policy of insurance properly incorporated the statutory fee schedule limitation. Specifically, Plaintiff stated, “. . .[T]he pending issue in the highest court is essentially the same disputable issue as this matter. . .”.
Based upon the above, the Court finds that the specific amount pled in Plaintiff’s Complaint ($2,154.00) and the undisputed calculation regarding same, in conjunction with Plaintiff’s statement that it was disputing whether the fee schedule was properly incorporated in Defendant’s policy of insurance, clearly show that Plaintiff’s Complaint does not encompass a claim for damages for an improperly applied deductible. Therefore, the Court maintains its previous ruling on Defendant’s Motion for Protective Order and denies Plaintiff’s Motion for Rehearing.
ORDERED AND ADJUDGED that Plaintiff’s Motion for Rehearing is hereby Denied.
