27 Fla. L. Weekly Supp. 191a
Online Reference: FLWSUPP 2702BURGInsurance — Personal injury protection — Pleadings make clear that PIP case solely involved issue decided by Florida Supreme Court decision in Orthopedic Specialists regarding sufficiency of insurer’s policy language to elect use of statutory fee schedules for reimbursement of PIP benefits — Motion to strike or exclude deductible issue which was raised by medical provider only after appellate case was decided adversely to provider’s position is granted
HEALTHY SUNRISE INC. a/a/o Erick Burgos, Plaintiff, v. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2012-15355-SP-05 (01). March 25, 2019. Christina M. DiRaimondo, Judge. Counsel: Stephen Cameron, Cameron Law Group, Tamarac, for Plaintiff. Ivane Sargent and Raul L. Tano, Shutts & Bowen LLP, Miami, for Defendant.
ORDER GRANTING ALLSTATE’S MOTION TOEXCLUDE/STRIKE ISSUES NOT PLED BYTHE PLAINTIFF IN ITS COMPLAINT
THIS CAUSE came before the Court on Allstate’s Motion to Exclude/Strike Issues not Pled by the Plaintiff in its Complaint, and after hearing argument of counsel by both parties, reviewing the pleadings filed with the Court, and reviewing all applicable case law, it is
ORDERED AND ADJUDGED: Defendant’s Motion to Strike/Exclude Strike Issues not Pled by the Plaintiff in its Complaint is GRANTED for the reasons stated below:
On or about July 25, 2012, Plaintiff filed a single count complaint against Defendant seeking payment for PIP benefits for treatment rendered to Defendant’s insured as a result of an automobile accident. The single-count Complaint alleged a general violation of Florida Statute §627.736, and sought damages in the amount of $1,212.46.1 In its Answer, Defendant asserted only one defense — claiming that Allstate’s policy expressly elected reimbursement based on the fee schedule limitations authorized by the PIP statute. After serving initial discovery, Plaintiff filed a motion for summary judgment, wherein it alleged that the medical services at issue were reasonable, related, and medically necessary. Following approximately ten months of inactivity between May 2013 and March 2014, Plaintiff filed a second motion for summary judgment, wherein Plaintiff specifically took the position that “Defendant’s policy does not allow for reimbursement at the fee schedule level and as such, the Plaintiff is entitled to summary judgment.”
On January 26, 2017, the Florida Supreme Court in Allstate Insurance Company v. Orthopedic Specialists, ruled in favor of Defendant’s policy as to its ability to make fee schedule election. See Allstate Insurance Company a/a/o Serridge v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a] (the “Serridge decision”). Following the Serridge decision, and in the midst of a two-and-a-half year period where Plaintiff did not prosecute its claim2, Plaintiff filed a Request for Production in March 2017 wherein it requested a copy of the PIP log and Explanations of Benefits.3 For nearly a year thereafter, Plaintiff let the case lie fallow. On February 1, 2018, Plaintiff for the first time served discovery related to an alleged misapplication of the insured’s deductible. Allstate objected and filed the instant motion.
Florida law is clear that a party is bound by the issues as framed in the pleadings, and the Complaint must be pled with sufficient particularity to permit the Defendant to prepare its defense. See Assad v. Mendell, 550 So. 2d 52, 53 (Fla. 3d DCA 1989). This principle is so ground in the law that the Florida Supreme Court has held that where a claim is not pled with sufficient particularity for the opposing party to prepare a defense, the plaintiff is precluded from recovery on the unpled claim. Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A., 537 So. 2d 561 (Fla. 1988).
The pleadings and the record before this Court make clear that this case involves solely the issue decided by the Florida Supreme Court in Orthopedic Specialists. The Court notes that during the five and a half years prior to February 2018, no discovery or filings were propounded by the Plaintiff to the Defendant as to the deductible issue. As such, it is clear that up until the finalization of the Florida Supreme Court’s ruling in the Serridge decision in favor of Allstate on the issue of policy language as to application of fee schedule, Plaintiff’s position was that the Serridge Issue was the sole issue presented by this litigation and as such, the Serridge decision is case dispositive in this matter. Accordingly, this Court grants Defendant’s Motion to Exclude/Strike Issues not Pled, Improperly Pled, and/or Waived by Plaintiff. See Sunbeam Television Corp. v. Mitzel, 83 So. 2d 865, 875 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D183a] (when a plaintiff pleads one claim but tries to prove another, it is error for a trial court to allow the plaintiff to argue the unpled issue at trial).
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1The amount sought in Plaintiff’s Complaint equates to the maximum PIP benefits of $10,000.00, minus $8,787.54 (the amount Plaintiff alleged that Defendant paid), which clearly indicates Plaintiff was only challenging the application of the fee schedule.
2Between October 13, 2014, and March 30, 2017, Plaintiff filed no record activity.
3Defendant had previously produced the responsive documents to Plaintiff in December 2012.
