27 Fla. L. Weekly Supp. 486a
Online Reference: FLWSUPP 2705RIVAInsurance — Personal injury protection — Coverage — Medical expenses — Where PIP policy provides that charge submitted for amount less than amount allowed under fee schedule shall be paid in amount of charge submitted, insurer is required to pay full amount of charge that was less than allowed amount — Insurer’s affidavit in opposition to summary judgment is not considered where exhibits referenced in affidavit were not attached to copy filed with court — Although affidavit with attached exhibits was served on medical provider by email, affidavit will not be considered where format of email did not comply with rule 2.516
GR REHAB CENTER, INC. a/a/o Rosely Rivas, Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2018-4817 CC25 (01). April 11, 2019. Linda Diaz, Judge. Counsel: Walter A. Arguelles, Arguelles Legal, P.L., Miami, for Plaintiff. Vivian Lasaga, for Defendant.
ORDER ON PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT
THIS MATTER, having come before the court for hearing on March 26, 2019, on Plaintiff’s Motion for Summary Judgment regarding Defendant’s Reductions of CPT Codes with “BA” designations, the Court having reviewed the Plaintiff’s motion, read relevant legal authority, heard argument from counsel of each party, and having been sufficiently advised in the premises, finds as follows:
LEGAL ISSUE
The issue before the Court is whether the Defendant’s policy of insurance requires that Defendant tender payment at the submitted amount when said amount is less than the amount allowed.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
On or about July 30, 2017, Rosely Rivas (hereinafter referred to as “Claimant”) was involved in an automobile accident in which he sustained injuries. As a result thereof, the claimant sought medical attention at GR Rehab Center (herein after necessary. Once the Plaintiff has established its prima facie case, the burden then shifts to the Defendant to establish a genuine issue of material fact. With that being said, it is not sufficient for the Defendant to simply state that the Plaintiff’s services are unreasonable, not medically necessary or related without providing insight as to how this determination was made. See Progressive Express Ins. Co.v Freidman, M.D., P.A, 14 Fla. L. Weekly Supp. 320c.
The pertinent portion of the policy at issue states:
A charge submitted by a provider, for an amount less than the amount allowed above, shall be paid in the amount of the charge submitted.
“Amount allowed above” refers to the amount allowed under the schedule of maximum charges set forth in Fla. Stat. 6237.736(5)(a)(1). For the services at issue, the applicable portion of the schedule of maximum charges is “200% of the allowable amount under the participating physician fee schedule of Medicare Part B. Plaintiff contends that the plain language means exactly what it says — that the Defendant will pay the full amount of any charges that are less than the amounts allowed under the fee schedule payment methodology.
The law in Florida is well settled with respect to the interpretation of an insurance contract. Where the language is clear and unambiguous, a Court must interpret the policy in accordance with the plain meaning so as to give effect to the policy as written. See Washington Nat’l Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla. 2013) [38 Fla. L. Weekly S511a], citing State Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566, 569-70 (Fla. 2011) [36 Fla. L. Weekly S469a].
While the statute gives insurers a choice of how to handle charges that are less than the amount allowed under the schedule of maximum charges, Geico’s use of the word “shall” clearly establishes that Geico has affirmatively chosen to pay the full amount of the charge submitted. If Geico “meant something different from the plain text of the policy, then it was required to unambiguously draft the contract accordingly. County Line Chiro. Ctr. Inc. a/a/o Stephanie Campbell v. Geico Gen. Ins. Co., Case No: 2017-014867-SP-23-01 (July 20, 2018) [26 Fla. L. Weekly Supp. 407a]. Courts are not permitted to revise an otherwise valid insurance policy to make it more reasonable or advantageous for an insurance company that used imprecise language providing coverage that is greater than coverage the insurance company may have originally contemplated.” Stack v. State Farm Mut. Auto. Ins. Co., 507 So.2d 617, 619 (Fla. 3d DCA 1987)
In opposition to Plaintiff’s motion, the Defendant requests that the Court take into consideration its Notice of Filing the Affidavit of Patrick Strickland, however, to do so would be in violation of Rule 1.510(C) of the Florida Rules of Civil Procedures. In its pertinent part, said rule indicates that “the adverse party must identify, by notice served pursuant to Florida Rule of Judicial Administration 2.516 at least 5 days prior to the day of the hearing if service by mail is authorized, or delivered, electronically filed, or sent by e-mail no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent that summary judgment evidence has not already been filed with the court, the adverse party must serve a copy on the movant pursuant to Florida Rule of Judicial Administration 2.516 at least 5 days prior to the day of the hearing if service by mail is authorized, or by delivery, electronic filing, or sending by e-mail no later than 5:00 p.m. 2 business days prior to the day of hearing.” (Emphasis added)
Although the Defendant’s Affidavit was timely filed with the Court, said affidavit makes reference to Exhibits A- E which was not attached. Although Courts have a preference to resolve cases on the merits rather than technicalities, the Rules of Civil Procedure are rules which are promulgated by the Florida Supreme Court and must be followed by all who litigate in civil proceedings within the state. This Court has no discretion to ignore the requirements set forth in Rule 1.510(C). As noted in State Farm Mut. Auto. Ins. Co. v. Figler Family Chiropractic, P.A., No. 4D15-2716 (March 30, 2016) [41 Fla. L. Weekly D805b], the Court, in its appellate capacity, held that “just as the rule requires that the grounds for the motion be specifically identified, the rule also requires that the evidence in support of and in opposition to the motion be specifically identified, prior to the hearing.” See also A-Plus Med. & Rehab Ctr. a/a/o Cesar Acevedo v. State Farm Mut. Auto. Ins. Co., Case No:2014-15200-SP-25-02 (March 1, 2017) in which Judge Beovides denied Defendant’s request to consider missing pages from an affidavit filed in opposition to a Motion for Summary Judgment, holding that “consideration of such would be in violation of Florida Rule of Civil Procedure 1.510(c).”
The Defendant argued that the Court should nevertheless consider the Affidavit as it was filed and served upon Plaintiff under a separate email along with the corresponding exhibits. In response, the Plaintiff argues, and this Court agrees, that the Defendant has nevertheless failed to comply with Rule 1.510(c) of the Florida Rule of Civil Procedure and Rule 2.516 of the Rules of Judicial Administration.
The Court first looks to Rule 1.510(c) in its analysis. In its pertinent part, said rule indicates that “the adverse party must identify, by notice served pursuant to Florida Rule of Judicial Administration 2.516 at least 5 days prior to the day of the hearing if service by mail is authorized, or delivered, electronically filed, or sent by e-mail no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent that summary judgment evidence has not already been filed with the court, the adverse party must serve a copy on the movant pursuant to Florida Rule of Judicial Administration 2.516 at least 5 days prior to the day of the hearing if service by mail is authorized, or by delivery, electronic filing, or sending by e-mail no later than 5:00 p.m. 2 business days prior to the day of hearing.” (Emphasis added) This provision of the rule not only indicates the time the parties are permitted to serve any summary judgment evidence but also mandates the parties to comply with the Rules of Judicial Administration in serving said evidence.
The Court next looks at Rule 2.516 of the Florida Rules of Judicial Administration which dictates and set forth the requirements for service of pleadings and documents. In its pertinent part, said rule indicates:
(E) Format of E-mail for Service. Service of a document by e-mail is made by an e-mail sent to all addresses designated by the attorney or party with either (a) a copy of the document in PDF format attached or (b) a link to the document on a website maintained by a clerk.
(i) All documents served by e-mail must be sent by an e-mail message containing a subject line beginning with the words “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number and case style of the proceeding in which the documents are being served.
(ii) The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the name and telephone number of the person required to serve the document. (Emphasis added)
Service of documents is defined and regulated in Rule 2.516. The e-mail service requirements, which were implemented in 2012, use mandatory language stating that service “must” be made in the manner described. Fla. R. Jud. Admin. 2.516(b)(1)(E)(i)-(iv); In re Amendments to Fla. Rules of Jud. Admin. et al., 102 So.3d 505, 515-17 (Fla.2012). The Defendant’s service email failed to comply with Rule 2.516 of the Florida Rules of Judicial Administration in that the body of the email failed to contain the required information listed in subsection (ii), specifically, the body of Defendant’s email failed to identify the court in which the proceeding is pending, the case number, and the name of the initial party on each side. As previously indicated, the aforementioned rules were promulgated by the Florida Supreme Court and must be followed by all who litigate in civil proceedings within the state. This Court has no discretion to ignore the requirements set forth in Rules 1.510 or 2.516. 1
The Defendant finally argues that the Motion for Summary Judgment is not ripe as discovery is pending however this Court disagrees as there has been more than sufficient time for the Defendant to diligently take advantage of discovery opportunities, to complete all reasonable discovery, and any pending discovery would not be material to the issues currently before the Court. This is especially true when the Defendant has failed to comply with eight (8) Ex Parte Orders pertaining to overdue discovery responses. (Emphasis added)
Therefore, it is ORDERED and ADJUDGED that as a matter of law, Plaintiff’s Motion for Summary Judgment is hereby GRANTED.
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1See Wheaton v. Wheaton, 42 Fla. L. Weekly D411b (Fla. 3d DCA 2017), in which the Third District Court of Appeal affirmed the lower Court’s ruling holding that the Appellant “failed to comply with Florida Rule of Judicial Administration 2.516, which sets forth certain requirements for service by e-mail.” See also Matte v. Caplan, 140 So.3d 686, 688-689 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1237a] in which the Appellate Court affirmed the lower Court’s ruling holding that the parties must strictly follow Florida Rule of Judicial Administration 2.516, which governs service of documents.
