27 Fla. L. Weekly Supp. 212a
Online Reference: FLWSUPP 2702MORRInsurance — Personal injury protection — Coverage — Deductible — Where insurer initially reduced medical provider’s bills, which were the first claims received, pursuant to statutory fee schedule and denied claims because resulting amount was less than deductible; and after issuance of Florida Supreme Court opinion requiring that deductible be applied to 100% of a provider’s bills, insurer applied deductible to 100% of charges in accordance with new precedent and again denied claims because charges were still less than deductible, summary judgment is entered in favor of insurer
B GREENWALD MEDICAL PA, a/a/o Nancy Morrow, Plaintiff, v. DIRECT GENERAL INSURANCE COMPANY, Defendant(s). County Court, 19th Judicial Circuit in and for Martin County. Case No. 18001599SCAXMX. April 15, 2019. Jennifer Alcorta Waters, Judge. Counsel: Thomas E. Flanagan, III, Kane Lawyers PLLC, Greenacres, for Plaintiff. Titania N. Haynes, Vernis & Bowling of Palm Beach, P.A., North Palm Beach, for Defendant.
ORDER ON DEFENDANT’S RESPONSE IN OPPOSITIONTO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENTAND DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT
THIS CAUSE came on to be heard on Defendant’s Response in Opposition to Plaintiff’s Motion for Summary Judgment and Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Partial Summary Judgment, on April 10, 2019, and this Court, having heard argument of Counsel, and having reviewed the file hereby finds as follows:
1. Plaintiff filed this action in Palm Beach County on or about March 8, 2018. According to the Complaint, on or about May 19, 2014, Nancy Morrow was involved in a motor vehicle accident in which she sustained injuries.
2. In August of 2018, the Palm Beach County Court issued an Order Directing Plaintiff to show cause regarding venue. The Case was transferred to Martin County on or about October 25, 2018. On that date, this Court entered an Order Vacating Prior Orders and Compelling Appearance. In the Order, this Court ordered that the small claims rules of procedure be utilized, except for Rule 1.442 of the Florida Rules of Civil Procedure, and this Court invoked only Rule 1.442 of the Florida Rules of Civil Procedure.
3. On January 7, 2019, Plaintiff filed Plaintiff’s Motion for Partial Summary Judgment as to Liability for the Deductible Issue and request to preserve remaining funds.
4. The following day, at the Pretrial Conference, the parties agreed to set Summary Judgment for hearing in April. On or about March 11, 2019, Defendant filed Defendant’s response in opposition to Plaintiff’s Motion for Summary Judgment and Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Partial Summary Judgment.
5. Because this Court’s order on October 25, 2018 specifically ordered that the small claims rules of procedure be utilized, the Court considers the dueling summary judgment motions to be motions for summary disposition pursuant to Rule 7.135 of the Florida Small Claims Rules.
6. The Summary Disposition rules do not include specific time frames for the filing of affidavits or other pleadings, as required under Rule 1.510 of the Rules of Civil Procedure. Therefore, the Court is considering all filings made in this case, even those that were made the night before the hearing, and the afternoon of the hearing.1
7. This is an action for personal injury protection benefits under an automobile insurance policy issued by the Defendant, for medical services rendered by Plaintiff to Nancy Morrow. The policy provided for $10,000 in PIP benefits, which became available after the $1,000.00 deductible was met. Plaintiff rendered treatment services to Nancy Morrow commencing on May 23, 2014.
8. Plaintiff submitted bills to Defendant, which, according to the Affidavit of Amy Skunda, the litigation claims representative of Defendant, were the first bills received2. The two bills submitted by the Plaintiff totaled $705.00.
9. Defendant denied the claims as they were the first bills submitted and the deductible was not met. At the time that the claims were made, the Defendant calculated the reimbursable amount of the bills pursuant to 200% of the Medicare Part B Fee Schedule, which reduced the amount to $440.82, and applied the amount to the $1,000.00 deductible.3 Because the amount was less than the deductible, Defendant denied the claims.
10. After the Florida Supreme Court decided Progressive Select Ins. Co. v. Florida Hospital Medical Center, SC18-278 (Fla. December 28, 2018) [44 Fla. L. Weekly S59a], the Defendant reevaluated the denial of benefits in this case, and applied the deductible in accordance with the new precedent from the Supreme Court, under the authority of Ramon v. Aries Insurance Company, 769 So. 2d 1053 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D1830a], which permits an insurer to correct an error in payment of bills. Defendant stipulated to the Plaintiff’s position that Defendant should have applied the deductible in Plaintiff’s bills to the total charged amount.
11. Defendant then applied the deductible to 100% of the Plaintiff’s bills, which totaled $705.00, less than the $1,000.00 deductible amount.
12. Plaintiff’s bills were the first two received and both fell within the applicable $1,000.00 deductible, regardless of the deductible methodology applied by Defendant. Therefore, Plaintiff was not entitled to Personal Injury Protection benefit reimbursement by Defendant. Defendant is not responsible to Plaintiff for amounts within the deductible.
13. “The functional purpose of a deductible, which is frequently referred to as self-insurance, is to alter the point at which an insurance company’s obligation to pay will ripen.” Int’l Bankers Inc. Co. v. Arnone, 552 So. 2d 908, 911 (Fla. 1989). The insured is responsible for the payment of the deductible amount. Mercury Insurance Company of Florida v. Emergency Physicians of Central, 182 So.3d 661, 667 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D2364a].
14. Because the amounts in controversy were less than the deductible amount, they were the responsibility of the insured.
15. Plaintiff submitted no actual evidence that it had been damaged. Plaintiff has failed to establish any damages as a result of conduct by Defendant. Regardless of whether the bills at issue were applied to the deductible before the fee schedule, reduction or after, the bills would have been applied to the deductible in their entirety.
IT IS THEREFORE ORDERED AND ADJUDGED AS FOLLOWS:
1. Defendant’s Motion for Summary Judgment is GRANTED.
2. Plaintiff’s Motion for Partial Summary Judgment is DENIED.
3. Plaintiff, B. Greenwald Medical PA (a/a/o Nancy Morrow) shall take nothing by this action, and Defendant, Direct General Insurance Company, shall go hence without delay.
4. This Court reserves jurisdiction to entertain any timely motions regarding an award of attorneys’ fees and costs.
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1The Court prefers that pleadings and other substantive documents be filed in time for the documents to be carefully reviewed before a hearing.
2There were no affidavits filed which opposed the fact that these were the first two bills received by Defendant. Moreover, Defendant admitted in Paragraph 18 of Plaintiff’s Request for Admissions that all bills and claims for payments made against the personal injury protection and/or medical payments coverage for Nancy Morrow processed in the order in which they were received. Also, in response to Plaintiff’s Interrogatory Number 15, Defendant indicated that Plaintiff’s bills were one of the first bills received by Defendant concerning the May 19, 2014 accident.
3Prior to the Florida Supreme Court decision in December of 2018, the 4th DCA’s controlling precedent in this County permitted the reduction of the bills, even those applied to the deductible. See State Farm Mutual Automobile Insurance Co. v. Care Wellness Center, LLC (Care Wellness), 240 So. 3d 22 (Fla. 4th DCA 2018) [43 Fla. L. Weekly D573a
