28 Fla. L. Weekly Supp. 555a

Online Reference: FLWSUPP 2806SANT

Insurance — Personal injury protection — Discovery — Depositions — Motion for protective order barring medical provider from deposing insurer’s corporate representative is granted where deposition testimony is not necessary to adjudicate issues of deficient demand letter and improper unbundling of CPT codes

CENTRAL PALM BEACH PHYSICIANS AND URGENT CARE, INC. d/b/a TOTAL MD, Patient Daniel Santucci, Plaintiff, v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, County Civil Division RS. Case No. 50-2019-SC-004371-XXXX-SB. June 30, 2020. Marni A. Bryson, Judge. Counsel: Chad L. Christensen, for Plaintiff. Rachel M. LaMontagne, Ryan M. McCarthy, and Raul L. Tano, Shutts & Bowen LLP, Miami, for Defendant.

ORDER ON JUNE 9, 2020 HEARING

THIS CAUSE, came before the Court on June 9, 2020, on the following motions: (1) Allstate’s Motion for Leave to Amend Answer and Affirmative Defenses; (2) Allstate’s Motion for Enlargement of Time to Comply with Court Order; (3) Allstate’s Motion to Compel Answers to Interrogatories; (4) Allstate’s Motion for Protective Order; (5) Plaintiff’s Motion to Compel Appearance of Fla. R. Civ. Pro. 1.310(B)(6) Representative(s) for Deposition; and, the Court having reviewed the motions, heard the argument of counsel, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED:

1. Allstate’s Motion for Leave to Amend Answer and Affirmative Defenses is GRANTED. See Rule Fla. R. Civ. P. 1.190(a) (“Leave of court shall be given freely when justice so requires.”); New River Yachting Center, Inc. v. Bacchiocchi, 407 So. 2d 607 (Fla. 4th DCA 1981) (“As a general rule, refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.”). Because Plaintiff failed to make the requisite showing of abuse, prejudice, and futility, Allstate’s Amended Answer and Affirmative Defenses is deemed filed as of the date of this Order.

2. Allstate’s Motion for Enlargement of Time to Comply with Court Order is GRANTED. All summary judgment motions must be filed within 45 days and heard within 90 days of this Order.

1. Allstate’s Motion to Compel Answers to Interrogatories is MOOT. Plaintiff served unverified Answers to Allstate’s Interrogatories on June 8, 2020, at 10:03 p.m. — the evening before the hearing. Allstate reserves the right to move to compel compliant Answers to Interrogatories.

1. Allstate’s Motion for Protective Order is GRANTED and Plaintiff’s Motion to Compel Appearance of Fla. R. Civ. Pro. 1.310(B)(6) Representative(s) for Deposition is DENIED. Deposition testimony is not necessary to adjudicate the two legal issues presented in this case:

1. Whether Plaintiff failed to satisfy a condition precedent, as a result of its deficient pre-suit demand. See MRI Associates of America, LLC v. State Farm Fire and Casualty Co., 61 So. 3d 462 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D960b] (finding that whether plaintiff’s pre-suit demand is compliant is a summary-judgment issue, and “[t]he statutory requirements surrounding a demand letter are significant, substantive preconditions to bringing a cause of action for PIP benefits); Lake Worth Emergency Chiropractic Center, P.A. (a/a/o Ryan Garter) v. State Farm Mutual Automobile Ins. Co., 22 Fla. L. Weekly Supp. 65a (15th Cir. Ct. (App.) (2014)) (affirming summary judgment in favor of the insurer based on demand letter’s failure to comply with section 627.736(10)); Fountain Imaging of West Palm Beach, LLC (a/a/o Charlotte Jennings) v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 614a (15th Cir. Ct. (App.) 2007) (affirming the trial court’s summary judgment in favor of the insurer and holding that the provider’s demand did not satisfy the demand letter requirements of the PIP statute); Precision Diagnostic of Lake Worth, LLC (a/a/o Violette Timoleon) v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 357a (Fla. 15th Jud. Cir. Cty. January 10, 2014) (granting summary judgment in favor of the insurer based on plaintiff’s deficient pre-suit demand).

2. Whether Plaintiff improperly unbundled CPT code A4556, rendering it noncompensable. Consistent with this Court’s prior ruling, this is a legal issue that requires no further fact discovery in this case. See Central Palm Beach Physicians & Urgent Care d/b/a Total MD (a/a/o Stephane Morgan) v. Allstate Fire and Casualty Ins. Co., Case No. 50-2017-SC-004021 (Palm Beach County Court, September 9, 2019) (“This Court finds that Plaintiff’s sole theory of breach, compensability of the Plaintiff’s billing of HCPCS Code A4556 on 2/23/15, presents solely a pure issue of law to be adjudicated by way of summary judgment, requiring no fact discovery.”) (citing State Farm Mutual Automobile Insurance Company v. R.J. Trapana, M.D. P.A. (a/a/o Noemi Marquez), 23 Fla. L. Weekly Supp. 98a (Fla. 17th Cir. Ct. (App.) (2015)) (holding the improper billing and unbundling defense were legal issues and thus the county court erred in failing to grant the insurer’s summary-judgment motion)).