27 Fla. L. Weekly Supp. 763a
Online Reference: FLWSUPP 2708VVECInsurance — Personal injury protection — Coverage — Deductible — Where medical provider’s bills fell within deductible, irrespective of whether insurer reduced bills by application of statutory fee schedule prior to applying resulting sum to deductible or applied total bills to deductible, provider was not entitled to reimbursement of PIP benefits — Despite failure to provide deductible election form, insurer is entitled to summary judgment where insurer presented competent substantial evidence as to deductible amount, and provider did not provide any contrary evidence
SPECIALTY HEALTH ASSOCIATES. LLC, a/a/o Isabelle Vecchio, Plaintiff, v. GEICO INDEMNITY COMPANY, Defendant. County Court, 19th Judicial Circuit in and for Martin County. Case No. 190000370SCAXMX. October 1, 2019. Jennifer Alcorta Waters, Judge. Counsel: Christina Kontogiannis, Law Office of Jeffrey R. Hickman, West Palm Beach, for Defendant.
AMENDED ORDER ON DEFENDANT’S MOTION FORSUMMARY JUDGMENT AND PLAINTIFF’S RESPONSETO CROSS-MOTION FOR SUMMARY JUDGMENT1
THIS CAUSE came on to be heard on Defendant’s Motion for Summary Judgment and Plaintiff’s Response to Cross-Motion for Summary Judgment on August 19, 2019, and this Court, having heard argument of Counsel, and having reviewed the file, hereby finds as follows:
1. Plaintiff filed this action in Martin County on or about February 27, 2019. According to the Complaint, on or about July 5, 2017, Isabelle Vecchio sustained injuries from a motor vehicle accident.
2. Isabelle Vecchio is the daughter of the insured, Katelynn Rose Vecchio.
3. On June 27, 2019, Defendant filed Defendant’s Motion for Summary Judgment with supporting documents. On August 19, 2019, Plaintiff filed Plaintiff’s Response to Cross-Motion for Summary Judgment. Defendant agreed to hear Plaintiff’s Response to Cross-Motion for Summary Judgment at the August 19, 2019 hearing, despite the pleading being filed that morning.
4. 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 Isabelle Vecchio. 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 Isabelle Vecchio on the following dates in the following amounts:
a. July 12, 2017 $400.00
b. August 7, 2017 $75.00
c. August 9, 2017 $75.00
d. August 16-August 24, 2017 $225.00
5. The bills submitted by the Plaintiff totaled $775.00.
6. Plaintiff submitted bills to Defendant, which according to the Affidavit of Tanya Viera, Defendant’s PIP litigation adjuster, were the first and only bills received.
7. 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, and applied the amount to the $1,000.00 deductible.2 Because the amount was less than the deductible, Defendant denied the claims.
8. 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 re-evaluated the denial of benefits in this case, and applied the deductible in accordance with the new precedent from the Supreme Court, but still denied the claim because the total bills were less than the $1,000.00 deductible.
9. 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.
10. “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].
11. Because the amounts in controversy were less than the deductible amount, they were the responsibility of the insured.
12. 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.
13. Plaintiff further argued that the Defendant failed to meet it’s burden for Summary Judgment because it did not provide the deductible election form.
14. However, Defendant presented competent, substantial evidence as to the deductible amount, despite not producing any deductible election form, which, according to counsel for Defendant does not even exist.
15. The affidavit of Tanya Viera, provided in support of the motion for summary judgment attached the Contract and Declarations page as Exhibit “1”. The declarations page provides the amount of the deductible and provides additional information to the insured about the policy. Furthermore, Tanya Viera testified in her deposition that the “bills were applied to the insured’s $1,000.00 deductible” (Deposition Transcript, Page 12, lines 5-6). Additionally, the Affidavit of Tresa Green, Claims Manager of GEICO Indemnity Company, attached to the deposition of Tanya Viera, provides that the policy at issue provided PIP coverage of $10,000 per person, with a $1,000.00 deductible.
16. Plaintiff did not provide any evidence to indicate that the deductible elected was anything other than $1,000.00 as argued by the Defendant. There is no competent, substantial evidence filed in opposition to the Defendant’s position that the policy deductible is $1,000.00.
IT IS THEREFORE ORDERED AND ADJUDGED AS FOLLOWS:
1. Defendant’s Motion for Summary Judgment is GRANTED.
2. Plaintiff’s Response to Cross-Motion for Summary Judgment is DENIED.
3. Plaintiff, Specialty Health Associates LLC (on behalf of Isabelle Vecchio) shall take nothing by this action, and Defendant, Geico Indemnity Company, shall go hence without delay.
4. This Court reserves jurisdiction to entertain any timely motions regarding an award of attorneys’ fees and costs.
__________________
1Amended only to fix clerical errors in paragraph 13 of the findings portion of the order and paragraph 3 of the order section.
2Prior to the Florida Supreme Court decision in December of 2018, the 4th DCA’s controlling precedent in the 19th Circuit 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]
