28 Fla. L. Weekly Supp. 525a

Online Reference: FLWSUPP 2806WIGG

Insurance — Personal injury protection — Res judicata does not bar medical provider’s suit filed subsequent to settlement of earlier suit against insurer for treatment of same insured where earlier suit was based on insurer’s contention that certain charges were not reasonable, necessary or related to accident while current suit concerns only whether deductible was misapplied — Where including current claim about deductible in earlier suit would have required that provider anticipate legal precedent established by recent Florida Supreme Court decision regarding proper application of deductible, motion for summary disposition finding that provider is barred from seeking attorney’s fee award in current suit by section 627.736(15), which requires that all PIP claims be brought in same action, is denied

ST. AUGUSTINE PHYSICIANS ASSOCIATES, INC., a/a/o Amelia Wiggs, Plaintiff, v. PEAK PROPERTY AND CASUALTY INSURANCE CORPORATION, Defendant. County Court, 7th Judicial Circuit in and for St. Johns County. Case No. SP19-221, Division 65. August 12, 2020. Alexander R. Christine, Jr., Judge. Counsel: Ashley-Britt Hansen, Law Office of D. Scott Craig, LLC, Jacksonville, for Plaintiff. Dawn M. Carsten, for Defendant.

ORDER DENYING DEFENDANT’S MOTIONFOR FINAL SUMMARY DISPOSITION REGARDING THE DOCTRINE OF RES JUDICATAAND FLORIDA STATUTE § 627.736(15)

THIS CAUSE came before the Court for a hearing held on March 9, 2020, on Defendant Peak Property and Casualty Insurance Corporation’s “Motion for Final Summary Disposition Regarding the Doctrine of Res Judicata and Florida Statute § 627.736(15).” Present at the hearing representing the Plaintiff, St. Augustine Physicians Associates, Inc., as assignee of Amelia Wiggs (hereinafter referred to as “Physicians Associates”), was Britt Hansen, Esq. Present at the hearing representing the Defendant, Peak Property and Casualty Insurance Corporation (hereinafter referred to as “Peak Property”), was Dawn Cartsen, Esq. The Court has considered Peak Property’s motion (DIN 35) and Physicians Associates’ response thereto (DIN 38), has heard the argument of counsel, and being otherwise fully advised in the premises finds as follows:

I. Findings of Fact

On October 31, 2013, Amelia Wiggs (hereinafter referred to as the “Claimant”) was injured in an automobile accident and received medical treatment in connection therewith from Physicians Associates. The Claimant received medical treatment continually throughout the time period beginning November 1, 2013 and ending August 4, 2014, and incurred a total billed amount of $8,993.00 in medical expenses from Physicians Associates. Pursuant to an Assignment of Benefits executed by the Claimant in favor of Physicians Associates, Physicians Associates submitted the aforementioned medical bills to Peak Property under claim number 92A592707 for dates of service November 1, 2013 through August 4, 2014, for payment under the Claimant’s automobile insurance policy. The subject automobile insurance policy included a limit of $10,000.00 in Personal Injury Protection (“PIP”) benefits, with a $1,000.00 PIP deductible (hereinafter referred to as the “Policy”).

On June 5, 2015, Physicians Associates initiated a lawsuit against Peak Property in the following-styled proceeding: St. Augustine Physicians Associates, Inc., as assignee of Amelia Wiggs v. Peak Property and Casualty Insurance Corporation, St. Johns County Case No. SP15-850. In that action, Physicians Associates only sought to dispute Peak Property’s coverage determinations in connection with medical services rendered for the time period beginning May 27, 2014 and ending August 4, 2014. The initial lawsuit was settled, and Physicians Associates voluntarily dismissed the pending action against Peak Property with prejudice on September 7, 2015. Physicians Associates subsequently filed the instant lawsuit in which it alleges additional benefits purportedly owed under the same Policy, and arising out of the same automobile accident, as had been previously litigated in St. Johns County Case No. SP15-850. The parties presently dispute whether the doctrine of res judicata operates to procedurally bar the instant action and, alternatively, whether Florida Statute § 627.736(15) precludes Physicians Associates from seeking attorneys’ fees in the event they prevail on the merits.

II. Legal Standard

Generally, a Motion for Summary Judgment must meet the strict procedural requirements enumerated in Rule 1.510 of the Florida Rules of Civil Procedure. The requirements set forth therein are designed to protect the litigants’ constitutional right to a trial on the merits of a particular claim. Hicks v. Hoagland, 953 So.2d 695 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D909a]; Bifulco v. State Farm Mutual Auto. Ins. Co., 693 So.2d 707 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D1325a]. The Court may grant a motion for summary judgment if the pleadings, discovery, affidavits and other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c); Rice v. Greene, 941 So.2d 1230 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D2885a]; Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a]; see also Holl v. Talcott, 191 So.2d 40 (Fla. 1966); Krol v. City of Orlando, 778 So.2d 490 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D577a]; Willingham v. City of Orlando, 929 So.2d 43, 47 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D1355a]; Everett Painting Co., Inc. v. Padula & Wadsworth Const., Inc., 856 So.2d 1059, 1061 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2320a]; Wells v. City of St. Petersburg, 958 So.2d 1076, 1079 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D1486c]; Saullo v. Douglas, 957 So.2d 80, 88 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D1248a]; St. Lucie Falls Property Owners Ass’n v. Morelli, 956 So.2d 1283, 1284 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D1443a]. Summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. Snow v. Byron, 580 So.2d 238 (Fla. 5th DCA 1991); Key v. Trattmann, 959 So.2d 339 (Fla. 1st DCA 2007) [32 Fla. L. Weekly D1370b] (quoting Morris v. Morris, 475 So.2d 666, 668 (Fla. 1985)). The burden for establishing the elements for summary judgment are shouldered by the moving party and the trial judge must draw every inference or resolve every doubt in favor of the party opposing the motion. Id. See also Speedway SuperAmerica, LLC v. Dupont, 933 So.2d 75 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D1471c] (citing Kitchen v. Ebonite Recreation Centers, Inc., 856 So.2d 1083 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2401a]); Clay Elec. Co-op., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla. 2003) [28 Fla. L. Weekly S866a]; Scheibe v. Bank of America, NA., 822 So.2d 575 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1828b]; Petruska v. Smartparks-Silver Springs, Inc., 914 So.2d 502, 504 (Fla. 5th DCA 2005) [30 Fla. L. Weekly D2614a] (citing Turner v. PCR, Inc., 754 So.2d 683 (Fla. 2000) [25 Fla. L. Weekly S174a]); Wells, 958 So.2d at 1079. Where the basic facts of a cause of action are clear and undisputed, there being only a question of law to be determined, summary judgment is proper. Duprey v. United Services Auto. Ass’n, 254 So.2d 57 (Fla. 1st DCA 1971).

III. Analysis

Res Judicata

The parties’ present dispute is premised on whether the dismissal with prejudice in St. Johns County Case No. SP15-850 operates as res judicata to bar the instant Complaint. Peak Property asserts that because the instant action arises out of medical treatment incurred as a result of the same motor vehicle incident, and subject to the same PIP claim, as previously litigated in Case No. SP15-850, Physicians Associates is procedurally barred from alleging the instant action. Physicians Associates contends that the action in Case No. SP15-850 was brought in connection with Peak Property’s reliance on an Independent Medical Examiner’s opinion that Physicians Associates’ treatment for certain specific dates of service were not necessary, reasonable, or related to the subject motor vehicle accident; whereas the instant lawsuit states a wholly distinct cause of action arising from Peak Property’s misapplication of the deductible paid by the Claimant for certain specific dates of service for which Peak Property did not dispute coverage.

Under Florida law, the following four identities must be satisfied for the doctrine of res judicata to apply: “[1] identity of the thing sued for; [2] identity of the cause of action; [3] identity of parties; and [4] identity of the quality in the person for or against whom the claim is made.” B & V Ltd. v. All Dade General Const., Inc., 662 So.2d 413, 415 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D2494b] (citing Albrecht v. State, 444 So.2d 8 (Fla. 1984)) (further internal citations omitted). The Florida Supreme Court has opined that the test for determining whether a second suit between the parties is premised on the same cause of action “is whether the facts or evidence necessary to maintain the suit are the same in both actions.” Albrecht, 444 So.2d at 12. This test has been subsequently expounded upon to provide as follows:

The doctrine of res judicata bars relitigation in a subsequent cause of action not only of claims raised, but also claims that could have been raised. The idea underlying res judicata is that if a matter has already been decided, the petitioner has already had his or her day in court, and for purposes of judicial economy, that matter generally will not be reexamined again in any court (except, of course, for appeals by right).

Topps v. Florida, 865 So.2d 1253, 1255 (Fla. 2004) [29 Fla. L. Weekly S21a] (Emphasis in original).

The resolution of the instant summary judgment dispute turns on the requirement for “identity of the cause of action.” The existence of this identity “is a question of ‘whether the facts or evidence necessary to maintain the suit are the same in both actions.’ ” Tyson v. Viacom, Inc., 890 So.2d 1205, 1209 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D185c] (Internal citations omitted). Florida appellate courts have declined to find the presence of identity of the cause of action in situations where the facts necessary to prove two distinct claims are not identical. Id. (holding that a former employee’s breach of contract and whistleblower claims arising from the termination of his employment rested on distinct facts such that res judicata did not apply); see also B & V, 662 So.2d 413 (finding that the maintenance of two separate suits for two separate causes of action predicated on a series of construction contracts between the same parties was proper).

It is readily apparent that the cause of action in the instant proceedings is sufficiently distinct from the cause of action raised in Case No. SP15-850 to support a finding that res judicata does not bar the instant claim. Physicians Associates filed its action in Case No. SP15-850 based upon Peak Property’s contention that the medical services provided for those specific dates of services were not covered under the Policy because they were not “reasonable, necessary or related to the subject motor vehicle accident.” Conversely, Peak Property had determined that the medical services provided for the dates of service in the instant proceeding were covered under the Policy; and the instant dispute concerns only whether the deductible was misapplied. Moreover, the Court observes that the parties additionally dispute when the instant cause of action accrued. Latimer Dep., at pp. 26-27. Consequently, the Court finds, as a matter of law, that the doctrine of res judicata is inapplicable to the instant proceedings; and this portion of Defendant’s motion will be denied with prejudice.

Entitlement to Attorneys’ Fees Under Fla. Stat. § 627.736(15)

With the applicability of res judicata to the instant case having been decided, the Court next turns to the issue of whether Section 627.736(15), Florida Statutes, which requires all PIP suits to be brought in the same action, precludes Physicians Associates from seeking attorneys’ fees in this case. Fla. Stat. § 627.736 provides in pertinent part:

(15) ALL CLAIMS BROUGHT IN A SINGLE ACTION. — In any civil action to recover personal injury protection benefits brought by a claimant pursuant to this section against an insurer, all claims related to the same health care provider for the same injured person shall be brought in one action, unless good cause is shown why such claims should be brought separately. If the court determines that a civil action is filed for a claim that should have been brought in a prior civil action, the court may not award attorney’s fees to the claimant.

Because there is no appellate authority addressing what might constitute “good cause” for bringing two separate claims related to the same health care provider for the same injured person, this Court is left with little guidance as to the interpretation of Fla. Stat. § 627.736(15) in the instant situation. The instant action is wholly premised on the Florida Supreme Court’s recent decision in Progressive Select Ins. Co. v. Florida Hospital Medical Center, in which the Court opined that Fla. Stat. § 627.739(2) requires insurers to apply the deductible to the total billed amount prior to reduction under the reimbursement limitation in Fla. Stat. § 627.739(2). 280 So.3d 219 (2018) [44 Fla. L. Weekly S59a]. The Florida Supreme Court’s opinion in Progressive was issued on December 28, 2018; thus, for Physicians Associates to assert the instant claim within the 2015 proceedings, it would have been required to anticipate legal precedent. Based on the foregoing, the Court is disinclined at the instant stage in the proceedings to grant summary judgment finding, as a matter of law, that Physicians Associates had no good cause for filing the instant litigation separately from the 2015 action. The record has not been sufficiently developed, nor have the facts surrounding the filing of the instant litigation separately from Case No. SP15-850 been crystallized, such that the Court can arrive at a determination as to the applicability of Fla. Stat. § 627.736(15). This portion of Defendant’s motion will consequently be denied as premature.

Accordingly, it is hereby:

ORDERED AND ADJUDGED that:

1. Defendant’s Motion for Final Summary Disposition is DENIED with prejudice as to the doctrine of res judicata.

2. Defendant’s Motion for Final Summary Disposition as to the applicability of Fla. Stat. § 627.736(15) is DENIED as premature.

3. The parties shall proceed accordingly.