7 Fla. L. Weekly Supp. 546b
Insurance — Personal injury protection — In claim for PIP benefits in which insurance carrier has withdrawn, reduced or denied further benefits, it is condition precedent under section 627.736(7)(a) that insurer obtain report by a physician licensed under the same chapter as the treating physician stating that the treatment was not reasonable, related, or necessary in order for an insurance carrier to defend a suit for reduction, withdrawal or denial of further payments on grounds of reasonableness, necessity, or relationship — Court’s ruling applies to “usual and customary” reductions — Explanation of Benefits will not substitute for medical report required by statute
OXFORD MEDICAL CLINICS As Assignee of Maria Picazo, Plaintiff, vs. STATE FARM INSURANCE COMPANIES, Defendant. County Court, 12th Judicial Circuit in and for Manatee County, Civil Division. Case No. 2000-SC-198. May 10, 2000. Matthew E. McMillan, Judge. Counsel: Rebecca L. Falcon, Jodat & Luhrsen, P.A., Bradenton, for Plaintiff. Jeffrey F. Worman, Kevin W. Korth & Associates.
ORDER GRANTING PLAINTIFF’S REQUEST FOR DECLARATORY RELIEF
THIS CAUSE having come on to be heard on Defendant’s Motion to Dismiss Plaintiff’s Claim for Declaratory Relief and the Court having considered the Motion and being otherwise duly advised in the premises, finds as follows:
The Plaintiff in this action seeks a declaratory judgment with respect to issues between the Plaintiff and the Defendant due to the recurring nature of the dispute and to resolve the doubt as to the rights and responsibilities pursuant to Florida Statute 627.736(7)(a).
Declaratory judgments are governed by Florida Statute Chapter 86. Section 86.021 provides as follows:
86.021 Power to construe
Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.
Plaintiff claims that their rights and legal relations under the statute are in doubt. Accordingly, they argue that they are entitled to a declaratory judgment, and cite to this Court section 86.101 which provides that
This chapter is declared to be substantive and remedial. Its purpose is to settle and to afford relief from insecurity and uncertainty with respect to rights, status and other equitable or legal relations and is to be liberally administered and construed.
An adverse party may be inclined to argue that declaratory relief should not be granted because the Plaintiff has other remedies available to resolve the disputed issues. This argument must fail in light of the foregoing statement in section 86.101 regarding the intent of the Chapter, and based upon section 86.111 which states:
The existence of another adequate remedy does not preclude a judgment for declaratory relief. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar. The court has power to give as full and complete equitable relief as it would have had if such proceeding had been instituted as an action in chancery.
“Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts.” May v. Holley, 59 So.2d 636, 639 (Fla. 1952).
It is clear that the analysis and the requirements of the May case are present in this cause. “It has often been held that disagreements as to the coverage of insurance policies are a proper subject for declaratory judgment.” Perez v. State Automobile Insurance Association, 270 So.2d 377 (3rd DCA 1972). See, Jones v. New Amsterdam Casualty Company, Fla.App.1968, 213 So.2d 502; Zeagler v. Commercial Union Insurance Company of New York, Fla.App.1964, 166 So.2d 616; Cruger v. Allstate Insurance Company, Fla. App. 1964, 162 So.2d 690.
“The purpose of the declaratory judgment statute is to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations, and it should be liberally construed.” Martinez v. Scanlan, 582 So.2d 1167, 1170 (Fla. 1991).
Based upon the foregoing, this Court grants Plaintiff’s request for declaratory relief, however, only as to a narrow issue.
The Issue: The application of Florida Statute 627.736(7)(a) to the
withdrawal, denial or reduction of personal injury protection
benefits (PIP) in light of the decision in United Automobile
Insurance Company v. Viles.
The statute in dispute, 627.736(7)(a) provides as follows:
Whenever the mental or physical condition of an injured person covered by personal injury protection is material to any claim that has been or may be made for past or future personal injury protection insurance benefits, such person shall, upon the request of an insurer, submit to mental or physical examination by a physician or physicians …. An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a report by a physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary.
Plaintiff asserts that a question has arisen as to the application of United Automobile Insurance Company v. Viles, 726 So.2d 320 (Fla. 3rd DCA 1998). The Plaintiff in Viles filed suit seeking personal injury protection benefits for injuries sustained in an automobile accident. United Auto paid a portion of the medical bills for a chiropractor before denying payment on the outstanding bills. At trial, Viles moved for a directed verdict, arguing that section 627.736(7)(a) required that United Auto obtain a report from a similarly licensed physician before it could withdraw payment of benefits. The trial court granted Viles motion at the end of the trial, finding that United was barred from raising the defense that the bills were not reasonable or necessary due to their failure to obtain a physicians report prior to denying payment.
The trial court then certified the question following to be of great public importance:
“In any claim for personal injury protection benefits in which the insurance carrier has withdrawn, reduced benefits or denied further benefits, is it a condition precedent pursuant to section 627.736(7)(a), Florida Statutes, that an insurer obtain a report by a physician licensed under the same chapter as the treating physician that the treatment was not reasonable, related or necessary in order for the insurance carrier to defend a suit for reduction, withdrawal or denial of further payments on the grounds of reasonableness, necessity or relationship?”
The Third District Court of Appeal answered the question in the affirmative.
IT IS ORDERED AND ADJUDGED THAT, AND THIS COURT DECLARES that in any claim for personal injury protection benefits in which the insurance carrier has withdrawn, reduced benefits or denied further benefits, it is a condition precedent, under F.S. S. 627.736(7)(a), that an insurer obtain a report by a physician licensed under the same chapter as the treating physician stating that the treatment was not reasonable, related, or necessary in order for an insurance carrier to defend a suit for reduction, withdrawal or denial of further payments on the grounds of reasonableness, necessity or relationship.
The Court further finds that this applies to “usual and customary” reductions, and that an Explanation of Benefits (EOB) will not substitute for a medical report as required by 627.736(7)(a).
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