27 Fla. L. Weekly Supp. 758a
Online Reference: FLWSUPP 2708PEREInsurance — Personal injury protection — Coverage — Medical expenses — Condition precedent — Provision of claimant’s social security number to insurer — Where insurer did not make specific denial of complaint’s allegation that all conditions precedent had been met or file affirmative defense claiming failure to comply with condition precedent, trial court will not consider defense of failure to comply with condition precedent on motion for summary judgment — Non-cooperation — Claimants’ failure to provide their social security numbers to insurer did not violate cooperation clause of PIP policy where clause does not require provision of social security numbers — Speculative chance that insurer may be required to provide social security numbers to federal government if government seeks to recoup Medicare benefits paid on behalf of claimants does not support non-cooperation defense where there is no basis to assume that claimants are Medicare-eligible, and federal law does not require claimants to provide or even have social security numbers
CHRIS THOMPSON, P.A., as assignee of Barbara Perez, Plaintiff, v. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 14-014122 CONO 70. September 24, 2019. John D. Fry, Judge. Counsel: Cris Evan Boyar and Frank T. Noska III, for Plaintiff. John Gioannetti, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FORPARTIAL SUMMARY JUDGMENT AND DENYINGDEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the court on September 3, 2019, on Plaintiffs Motion for Partial Summary Judgment and on Defendant’s Motion for Final Summary Judgment. The court finds as follows:Background Facts
On June 11, 2014, Ingrid and Barbara Perez were injured in a motor vehicle accident while in a vehicle owned and operated by the Defendant’s insured. Passenger Ingrid Perez, 24 years old on the day of the crash, was not the named insured. Barbara Perez was eight years old on the day of the crash and is the daughter of Ingrid Perez.
The policy of insurance issued by the Defendant provided $10,000 in No-Fault (PIP) benefits for each claimant. Following the accident Barbara and Ingrid Perez treated with the Plaintiff medical provider and incurred bills for their care and treatment. The Plaintiff submitted bills to the Defendant. The Defendant determined the Perez family would be entitled to PIP benefits because the investigation revealed the information on the police report accurately reflected the patient’s name, date of birth, address and upon further investigation, it was determined that Ingrid Perez did not own a car, have PIP insurance, or reside with a relative that owned an operational motor vehicle with insurance.
The Defendant’s adjuster informed the attorney for the Perez family that it would be extending coverage. Subsequently, on September 11, 2014, the Defendant demanded the social security number for both Ingrid and Barbara Perez from their attorney. The Defendant conditioned payment on their receipt of the social security numbers and has refused to issue payment for the medical bills. The Defendant sent explanation of reviews to the Plaintiff explaining that payment was denied for “federal data reporting requirements pursuant to Section III of Public Law 100-173.”
The Plaintiff then filed suit for breach of contract. The Defendant filed an answer and affirmative defense on April 4, 2017 alleging a “lack of cooperation” defense because the patients failed to provide the Defendant with the social security numbers and that it was under no duty to issue payment because it had “reasonable proof” not to issue payment as it did not receive the social security numbers required by 42 U.S.C. §1395y(b)(8).
The Plaintiff seeks Partial Summary Judgment as to whether a social security number would be required to trigger PIP payments.
The Defendant seeks summary judgment arguing that receiving the social security number is a condition precedent where prejudice is not required to be established and, in the alternative, summary judgment that there was a violation of the cooperation clause of the policy claiming it was prejudiced.
The court finds these facts are not in dispute.The Dispute
The dispute being argued at this point is whether an insurer can demand a social security number as a condition precedent to paying the claim directly to the medical provider and whether the failure to provide the social security number would violate the cooperation clause of the policy.Condition Precedent
Plaintiff argues that the complaint states all conditions precedent have been satisfied and the Defendant failed to file a denial of a condition precedent with specificity as required by Rule 1.120 (c). Further, the Plaintiff argues the Defendant failed to allege as an affirmative defense that a condition precedent has not been satisfied.
In Cousins v. Post-Newsweek Stations Florida, Inc., 44 Fla. L. Weekly D538a (Fla. 3d DCA 2019) the court held:
Florida Rule of Civil Procedure 1.120(c) establishes a special pleading rule regarding the performance or occurrence of a condition precedent. Under this rule, it is sufficient for a claimant to “aver generally that all conditions precedent have been performed or have occurred.” Id. Where the complaint alleges compliance with a condition precedent to suit, “the burden then shifts to the defendant to deny with specificity and particularitythat the required notices were given, and to properly present this issue to the trial court in the context of a summary judgment motion or in a motion for judgment on the pleadings.” Cabral v. City of Miami Beach, 76 So.3d 324, 326-27 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D2355a] (internal citation omitted). By failing to timely and specifically raise the issue in the pleadings, a defendant waives the argument that a claimant did not meet a condition precedent. See Ingersoll v. Hoffman, 589 So.2d 223, 224 (Fla. 1991).
Therefore, since the Defendant did not make a specific denial or file an affirmative defense claiming the failure to comply with a condition precedent the court will not consider this defense for Summary Judgment purposes.Cooperation Clause of the Policy of Insurance
Defendant next argues the patients failed to cooperate with their request for the social security numbers and that the Defendant could not pay the claim without the social security numbers because it would be a violation of 42 U.S.C. 1395y(b)(7)&(b)(8), subjecting the Defendant to “possible” penalties.
The court begins its analysis with the PIP statute. The statutory provisions under Florida’s No-Fault laws will be construed liberally in favor of the insured. See Farmer v. Protective Cas. Ins. Co., 530 So.2d 356 (Fla. 2d DCA 1988). Nowhere in any of Florida’s No-Fault laws does it require a claimant to provide social security numbers to a PIP insurer. In fact, in Fla. Stat. §627.736(6)(b) it allows an insurer to make a timely written request of additional documentation or information from a medical provider pre-suit and if the provider does not provide a response the insurer would have extra time before payment would be due. This subsection does not include a request for a social security number as a basis to toll the time limitations.
PIP cases have been actively litigated for many years and there is not one published order or opinion that would stand for the proposition that a PIP insurer can demand a social security number as part of a cooperation clause. The PIP Statute states at §627.736 (5)(d) a provider may submit a bill to the insurer on a properly completed Centers for Medicare and Medicaid Services (CMS) 1500 form. This form is in the record and there is no space or box for the claimant to include a social security number.
Through discovery it was determined that the Defendant did not provide Ingrid Perez with an application for insurance benefits to be filled out prior to issuing payment for medical bills. Therefore, it is unknown if the Defendant typically requires this information. The Defendant’s policy of insurance requires cooperation but does not require the social security number as condition precedent or as a condition subsequent to receiving insurance benefits as an omnibus insured. Nor does it require a claimant to advise if the claimant is receiving medicare benefits.
In fact, when the Defendant first provided information about the policy and the claim process to the claimant none of those documents reflected that the claimant must provide a social security number or information about receiving medicare benefits. Further, the Defendant never asked if either Perez claimant was seeking or receiving medicare benefits or if they even have social security numbers. There is no record evidence that either Perez was obligated under any law to have a social security number.
Lastly, the court reviewed the federal statute cited by the Defendant. It states that a PIP insurer may be obligated to provide this information to the Secretary. There is no obligation for the claimant to provide this information to the Secretary. Further, the obligation may be on the insurer to determine whether a claimant is entitled to benefits under the program and IF the claimant is so entitled to submit information described that includes the identity of the claimant and such other information as the Secretary shall specify in order to enable the Secretary to make an appropriate determination concerning the coordination of benefits.
Here, there is no question Ingrid and Barbara Perez were identified and neither are over the age of 65. The medical records clearly state they are not disabled and they did not go to the hospital. There is simply no evidence in the record for the Defendant to assume either claimant was entitled to Medicare benefits or that Medicare may have issued any payments which would permit Medicare to seek reimbursement from the Defendant. Further, the Defendant had no trouble identifying Ingrid and Barbara Perez and possible or speculative penalties could not support a claim of prejudice.
The Defendant’s unilateral decision to demand this information from Ingrid and Barbara Perez is not supported by State law, Federal Law, or the policy of insurance. In the adjusters deposition transcript she stated it was her “understanding that she needed the social security number for federal data reporting requirements pursuant to Section 3 of Public Law 100-173.” The adjuster had no specific foundation or support for this “understanding.”
The Plaintiff filed an affidavit of expert John LoMeo to oppose the Defendant’s motion for Summary Judgment explaining how PIP insurers pay claims without social security numbers and the Defendant cannot be prejudiced by its failure to secure the social security number.
The Plaintiff asks the court to interpret the statutes strictly as drafted and not include any additional requirements or provisions not contemplated by the Florida legislature as argued by the Defendant in this case. In Florida, statutes will not be interpreted in a manner that leads to an unreasonable or ridiculous result or a result obviously not intended by the legislature. See Drury v. Harding, 461 So.2d 104 (Fla. 1984); Palm Springs General Hospital, Inc. of Hialeah v. State Farm Mut. Auto. Ins. Co., 218 So.2d 793 (Fla. 3d DCA 1969), affirmed, 232 So.2d 737 (Fla. 1970).
Insurers cannot use the lack of a medical provider’s license number as a basis to deny or delay a claim. See USAA Casualty v. Pembroke Pines, 31 So.3d 234 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D613b] where the court held an MRI provider did not have to include a license number on the claim form even though there is a box for this information as Florida law does not require it. Thus, it stands to reason a PIP insurer cannot demand a social security number as a condition to payment.
Accordingly, and in light of rampant identity theft, this court will not rewrite or interpret the statute as requested by the Defendant to require claimants to provide PIP insurers with their social security number as part of a condition precedent or as part of a cooperation clause in order to get PIP claims paid. Had the Florida legislature wanted PIP insurers to have the ability to request social security numbers as part of the claims process the Florida Legislature would have included this in the Statute. The court cannot rewrite the No-Fault Statute. In Thrivent Fin. for Lutherans v. State, Dept. of Fin. Services, 145 So. 3d 178, 182 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D1636a] the court held “. . . .this Court may not rewrite statutes contrary to their plain language.” Hawkins v. Ford Motor Co., 748 So.2d 993, 1000 (Fla.1999) [24 Fla. L. Weekly S480a]. “[P]olicy concerns . . . must be addressed by the Legislature.” Id.
Nor can the court rewrite a policy of insurance to allow an insurer demand a social security number as a condition of payment for medical benefits especially where insurance policies must be approved by the State of Florida. See Pol v. Pol, 705 So. 2d 51, 53 (Fla. 3d DCA 1997) [23 Fla. L. Weekly D75a] (“It is well established that a court cannot rewrite the clear and unambiguous terms of a voluntary contract.”).Conclusion
This Court finds that the Plaintiff has established there is no genuine issues of material fact as to its Motion for Partial Summary Judgment as to the social security defenses.
For the foregoing reasons the Plaintiff’s Motion for Partial Summary Judgment is hereby granted and the Defendant’s Motion for Final Summary Judgment as to the condition precedent and the lack of cooperation defenses are denied.
