27 Fla. L. Weekly Supp. 215a

Online Reference: FLWSUPP 2702MTIRInsurance — Personal injury protection — Coverage — Medical expenses — Emergency medical condition — Insurer entitled to summary disposition in its favor on provider’s claim for payment of amounts over $2500 where insurer was not put on notice of any emergency medical condition prior to suit being filed

SIMPSON CHIROPRACTIC PAIN AND WELLNESS CENTER, P.A., d/b/a URGENT CARE CHIROPRACTIC AND PAIN CENTER, a/a/o Migdalia Tirado, Plaintiff, v. AUTO CLUB SOUTH INSURANCE COMPANY, Defendant. County Court, 19th Judicial Circuit in and for St. Lucie County. Case No. 562016SC001545C6XXXX. September 7, 2018. Daryl Isenhower, Judge. Counsel: Stephen D. Deitsch, Deitsch & Wright, P.A., Lake Worth, for Plaintiff. Melissa G. McDavitt and Brittany L. Orlando Weisberg, Conroy Simberg, West Palm Beach, for Defendant.

FINAL JUDGMENT AND ORDER GRANTINGDEFENDANT’S MOTION FOR FINALSUMMARY DISPOSITION

THIS CAUSE having come before the Court for hearing on August 1, 2018 upon Defendant, Auto Club South Insurance Company’s Motion for Final Summary Judgment based upon Emergency Medical Condition and Exhaustion of Benefits. The Court, having read the submissions by the parties, having heard argument of counsel and being otherwise duly advised in the premises, makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. The subject action involves a claim for personal injury protection insurance benefits filed by Plaintiff, SIMPSON CHIROPRACTIC PAIN AND WELLNESS CENTER, P.A., d/b/a URGENT CARE CHIROPRACTIC AND PAIN CENTER (hereinafter “Plaintiff”) as assignee of Migdalia Tirado (hereinafter “Claimant”) against Defendant, AUTO CLUB SOUTH INSURANCE COMPANY (hereinafter “Defendant”), arising out of a motor-vehicle accident that occurred on January 14, 2013.

2. Plaintiff submitted its insurance claims forms for treatment of Claimant, accompanied by medical records, for dates of service from January 15, 2013 through May 28, 2013.

3. Defendant issued reimbursement for dates of service totaling up to $2,500 in benefits to the Plaintiff. Defendant limited reimbursement to $2,500 in accordance with Florida Statute § 627.736(2)3 & 4, Fla. Stat., because Defendant did not receive documentation or notice that the Claimant had been determined to have an “emergency medical condition” (“EMC”).

4. Upon exhausting all $2,500 of non-emergency condition benefits to Plaintiff, Defendant issued Explanations of Benefits stating that policy benefits had been exhausted.

5. On March 21, 2018, Defendant sent correspondence to counsel for the Claimant advising that “[w]e are notifying you that pursuant for Florida Statute 627.736(1)(a) that the available $2,500 in non-emergency care has exhausted. Therefore, no additional payments can be made under the PIP coverage for this claim for non-emergency care.” No response was received by Defendant in response to the March 21, 2018 letter.

6. On June 29, 2016, Plaintiff submitted a demand letter to Auto Club seeking personal injury protection benefits. Defendant responded to the June 29, 2016 letter on July 27, 2016 advising that “this insured’s $2,500 PIP benefits exhausted and nothing further is owed on this claim at this time. Should we receive a properly documented Emergency Medical Condition notice, this can be reevaluated at that time.” Defendant did not receive any documentation providing notice of an EMC following the July 27, 2016 letter, nor at any time prior to suit. Rather, the instant suit was filed on October 4, 2016 seeking payments of Personal Injury Protection Benefits in excess of the $2,500 previously paid by Defendant.

7.It is undisputed that no medical provider authorized in § 627.736(1)(a)3 submitted written notice of an EMC determination to Defendant prior to the service of Plaintiff’s demand letter or prior to filing suit.

8. Defendant moved for summary disposition on two grounds: 1) That Defendant properly limited PIP benefits to $2,500 where Defendant has not been provided with notice of an EMC and 2) That the $2,500 in available PIP benefits were properly exhausted.

9. In response to Defendant’s Motion, Plaintiff filed the affidavit of Frank C. Alario, M.D. The affidavit of Dr. Alario alleges that on October 3, 2016¹ he determined that the Claimant suffered an Emergency Medical Condition. Based upon the affidavit filed by Plaintiff, it is beyond dispute that Defendant was not on notice of any EMC prior to suit being filed.

10. Based on these facts, this Court has determined that Defendant’s motion for summary judgment should be granted.

CONCLUSIONS OF LAW

A. EMERGENCY MEDICAL CONDITION

11. In a lawsuit seeking benefits under the PIP statute, proof of emergency medical condition is an essential element of a plaintiff’s case where emergency medical condition is an issue. There is nothing in the PIP statute suggesting a legislative intent to alter the normal dynamics of a lawsuit by placing the burden on the defendant in a PIP case to prove that an emergency medical condition does or does not exists. See Derius v. Allstate Indem. Co., 723 So. 2d 271, 272 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1383a]. (“In a lawsuit seeking benefits under the statute, both reasonableness and necessity are essential elements of a plaintiff’s case. There is nothing in the PIP statute suggesting a legislative intent to alter the normal dynamics of a lawsuit by placing the burden on the defendant in a PIP case to prove that a proposed charge was unreasonable or that a given service was not necessary.”)

12. As to the event triggering this reimbursement, § 627.736(4)(b) requires payment only after “written notice of the fact of a covered loss and the amount of same.” Since it is the determination of an EMC that gives rise to the entitlement to reimbursement above $2,500, it follows that the statute requires written notice to the insurer of a qualified provider’s determination that the claimant had an emergency medical condition before more than $2,500 in benefits can become available.

13. In short, “benefits above $2,500 are available only where a medical provider determines an emergency medical condition exists. Where a medical provider does not make a determination that there is an emergency medical condition, benefits above $2,500 are not available.” Med. Ctr. of Palm Beaches v. USAA Cas. Ins. Co., 202 So. 3d 88, 93 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D2018b]. See Robbins v. Garrison Prop. & Cas. Ins. Co., 809 F.3d 583, 588 (11th Cir. 2015) [25 Fla. L. Weekly Fed. C1900a] (holding that an insurance company did not violate §627.736 by limiting benefits to $2,500 when the claimant provided no evidence that the injured person had an EMC).

14. By listing specific medical professionals who are authorized to make this determination, the No-Fault statute clearly imposes the burden of determining that an EMC exists on the provider.

15. Plaintiff submitted the affidavit of Dr. Frank Alario in opposition to Defendant’s Motion for Summary Judgment. However, this affidavit does not create a genuine issue of material fact. In fact, to the contrary, the affidavit illustrates that Defendant was not provided Notice of an EMC until after suit was filed. Because the affidavit was prepared and submitted to Defendant after suit was filed, it was insufficient to place Defendant on notice of a covered loss prior to suit. See Dorsal Rehab, Inc. f/k/a United Diagnostic & Rehab Associates a/a/o Deluise Skylar v. Progressive American Ins. Co., (Fla. Broward Cty. Ct. September 2, 2015) [23 Fla. L. Weekly Supp. 490b]. Benefits are not due until Defendant has received notice of a covered loss. See Id.; See F.S. 627.736(4)(b).

B. Exhaustion of Benefits

16. As a result, based on the record evidence presented in this case, the benefits under the Policy were legally limited to $2,500. Since the $2,500 limit has been paid out, Defendant had no additional liability to Plaintiff when this case was filed, and continues to owe no additional liability to Plaintiff. See Simon v. Progressive Exp. Ins. Co., 904 So. 2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]; Progressive Am. Ins. Co. v. Stand-Up MRI of Orlando, 990 So. 2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a], and Sheldon v. United Services Auto. Ass’n, 55 So. 3d 593 (Fla. 1st DCA 2010) [36 Fla. L. Weekly D23a].

C. Florida Statute 627.736(6)(b)

17. Plaintiff’s counsel takes the position that because Defendant did not serve a request to Plaintiff under 627.736(6)(b) requesting a Notice of EMC Defendant must automatically increase the $2,500 limit to $10,000; even where there has been no determination of EMC. However, Florida Statute § 627.736(1)(a)(3-4) requires a determination of an emergency medical condition for benefits to be up to $10,000. See Med. Ctr. of Palm Beaches v. USAA Cas. Ins. Co., 202 So. 3d 88, 93 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D2018b]. There is nothing in Florida Statute § 627.736 or the presented case law that requires Defendant to make a request for information pursuant 627.736(6)(b) or forfeit its right to limit benefits $2,500. In fact, to rule in such a way would have insurers pay in excess of $2,500 in circumstances where an EMC does not exist. The Court is not at liberty to add an obligation on the insurer or the insured that is not in the statute. See Id.

CONCLUSION

When Plaintiff submitted its charges to Defendant, Defendant properly adjusted its claim, limiting payment to $2,500.00 until a determination of an EMC was forthcoming. Once the $2,500.00 reimbursement ceiling was reached, in accordance with applicable law no further benefits were due. Although an insurer may make a request for information, Defendant is not required to request documentation or information, pursuant to § 627.736(6)(b), Fla. Stat., as to whether Claimant had been determined to have an emergency medical condition.

Even though at the time there was no determination of an EMC, Plaintiff served a pre-suit demand. The pre-suit demand was premature because nothing was due or overdue when it was served because Defendant was never provided with Notice of an EMC to the demand or filing of this suit. Florida Courts have consistently held that a finding of an emergency medical condition must be made prior to a claimant receiving in excess of $2,500.00 in personal injury protection benefits. See Gilmore Chiropractic a/a/o Virginia Faitella v. USAA Casualty Insurance Co., (Fla. Saint Lucie Cty. Ct. July 21, 2017) [25 Fla. L. Weekly Supp. 494a], Millenia Chiropractic, LLC a/a/o Anocillia Etienne v. Progressive American Ins. Co., (Fla. Orange Cty. Ct. December 4, 2015) [25 Fla. L. Weekly Supp. 470a], Westchester Health & Rehab Center, Inc., a/a/o Mario Gutierrez v. Progressive American Ins. Co., (Miami-Dade Cty. Ct. August 1, 2016) [24 Fla. L. Weekly Supp. 558a]. Dorsal Rehab, Inc. f/k/a United Diagnostic & Rehab Associates a/a/o Deluise Skylar v. Progressive American Insurance Company (Fla. Broward Cty. Ct. 2015) [23 Fla. L. Weekly Supp. 490b], Alternative Medical Center, a/a/o Wilner Henrilus v. Progressive American Insurance Company (Fla. Broward County Court 2015) [23 Fla. L. Weekly Supp. 372a], Precision Diagnostic, Inc. d/b/a Precision MRI a/a/o Jessica Allen v. United Services Automobile Association, (Fla. Broward County Court, 2014) [22 Fla. L. Weekly Supp. 389c], Douglas Rapid Rehab, P.A. d/b/a Douglas Chiropractic Center a/a/o Ronal Blaize, (Fla. Broward County Court, 2015) [23 Fla. L. Weekly Supp. 482a].

ORDERED and ADJUDGED, as follows:

1. That the Defendant’s Motion for Summary Disposition is hereby GRANTED.

2. That judgment be and hereby is entered for Defendant, that Plaintiff take nothing by this action and that Defendant go hence without day.

The Court reserves jurisdiction to determine attorney’s fees and costs.

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¹The instant suit was filed on October 4, 2016.