28 Fla. L. Weekly Supp. 524a
Online Reference: FLWSUPP 2806PERAInsurance — Personal injury protection — Stay — Insurer’s motion to stay PIP case based on claim that it did not receive emergency medical condition determination prior to suit being filed is denied — Explanation of benefits that states that documentation is insufficient to support services billed but makes no mention of need for EMC determination was insufficient notice that insurer was requesting EMC determination — Moreover, medical provider has offered evidence that EMC determination was provided to insurer prior to date of EOB, and insurer has had more than adequate time to consider EMC determination received post-suit
CENTRAL FLORIDA MEDICAL & CHIROPRACTIC CENTER, INC., d/b/a STERLING MEDICAL GROUP, a/a/o Yisell Peralta, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Flagler County. Case No. 2019 SC 002234, Division 61. August 10, 2020. Andrea K. Totten, Judge. Counsel: Keith M. Petrochko, Simoes Davila, Deland, for Plaintiff. Rhamen Love-Lane, Orlando, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONTO ABATE AND/OR STAY PROCEEDINGS
THIS CAUSE came before the court upon Defendant’s “amended motion for summary final judgment, motion for protective order, and/or motion to abate and/or stay the proceedings” (doc 25). The instant order addresses only Defendant’s motion to abate and/or stay. Having reviewed the court file and applicable law, and having heard the argument of the parties, the Court finds as follows:
Defendant’s motion to abate rests on its claim that it did not receive an Emergency Medical Determination (EMC) from Plaintiff prior to Plaintiff’s commencement of the instant suit — an assertion Plaintiff denies.1 Alternatively, argues Defendant, even if it did timely received the EMC but the EMC was lost or misplaced, Plaintiff failed in its pre-suit obligations under section 627.736, Florida Statutes, by not resubmitting the EMC in response to Defendant’s Explanation of Benefits (EOB), dated July 23, 2018 (doc 25, exhibit D). The EOB states:
Pursuant to Fla. Stat. 627.736(4)(b)4, payment is not overdue if the insurer has reasonable proof that the insurer is not responsible for the payment. You have not submitted documentation sufficient to support the services billed.
(Doc 25, exhibit D).
Plaintiff responds that abatement is not appropriate because the EMC was provided on June 6, 2018, prior to the commencement of the instant suit, as reflected in the sworn affidavit of Chacidie Richardson. Moreover, asserts Plaintiff, Defendant’s EOB, which makes no reference to a missing EMC, and which cites only to section 627.736(4)(b)4, was insufficient to put Plaintiff on notice that it was requesting the type of information delineated under section 627.736(6)(b).
The Court agrees with Plaintiff that the EOB in the instant case was insufficient to put Plaintiff on notice that Defendant was seeking documentation as set forth in section 627.736(6)(b). See e.g. Optimum Orthopedics & Spine, LLC. a/a/o Deborah Marley v. USAA General Indemnity Company, 27 Fla. L. Weekly Supp. 295a (9th Jud. Cir. Cty. Ct. Apr. 11, 2019) (finding that EOB did not constitute a valid request under section 627.736(6)(b)); Mercury Ins. Co. of Florida v. Med Manage Group, Inc. a/a/o Michael Bergey, 17 Fla. L. Weekly Supp. 997a (15th Jud. Cir. (appellate) Apr. 8, 2010) (same). Moreover, even if Defendant’s EOB was sufficient notice that Defendant was seeking an EMC, Plaintiff has offered evidence through the affidavit of Chacidie Richardson that the EMC was provided prior to the date of the EOB.
Additionally, if the purpose of abatement is for Defendant to examine the EMC to consider whether Plaintiff is entitled to additional reimbursement, Defendant has had more than adequate time to do so since, even by its own admission, it has had the EMC in its possession since at least December 2019.
Therefore, it is ORDERED AND ADJUDGED that Defendant’s Motion to Abate and/or Stay Proceedings is DENIED.
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1Plaintiff’s claim that the EMC was timely provided pre-suit is supported by the affidavit of Chacidie Richardson. (See doc 23).
