8 Fla. L. Weekly Supp. 394c
Insurance — Personal injury protection — Attorney’s fees — Health care provider entitled to attorney’s fees and costs as to its complaint seeking declaration that insurer is required, on presuit request from health care provider, to provide provider with current PIP payout sheet/log so that provider may know its relative status with regard to policy deductible — Insurer’s conduct in belatedly furnishing payout sheet post-suit, after refusing to honor presuit request for document, amounts to confession of judgment — Even if insurer had not conceded its position, health care providers is entitled to declaratory relief on merits
INTEGRA DIAGNOSTICS (a/a/o Shawn Umstead), Plaintiff, vs. RELIANCE NATIONAL INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 00-25839 COCE (53). March 14, 2001. William W. Herring, Judge. Counsel: Craig H. Blinderman, Craig H. Blinderman, P.A., Miami, for Plaintiff. Julio C. Acosta, Hightower, Rudd, Weiser & Acosta, P.A., Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TODETERMINE ENTITLEMENT TOATTORNEY’S FEES AND COSTS
This cause having been heard on March 9, 2001 on the Plaintiff’s motion to determine entitlement to attorney’s fees and costs pursuant to Sections 627.428 and 627.736(8), F.S., the Court having heard argument and being advised, it is
ORDERED that the above motion of the Plaintiff, Integra Diagnostics, is granted as to Count II of its complaint seeking declaratory relief on the issue whether the Defendant insurer is required, on presuit request from a health care provider, to provide the provider with a current PIP payout sheet/log so that the provider may know its relative status with regard to the policy deductible. Under the undisputed facts, Defendant’s conduct in belatedly furnishing the payout sheet post-suit, after refusing to honor a presuit request for the document, amounts to a confession of judgment. The Court finds:
1) On September 11, 2000, Defendant sent correspondence to the Plaintiff provider advising that its bill would not be paid as the $2,000.00 policy deductible had not been met;
2) Prior to suit, the Defendant insurer denied the request of the Plaintiff’s counsel for a current PIP payout sheet copy;
3) The Plaintiff filed its complaint seeking in Count I the payment of its medical bill and in Count II declaratory relief regarding its right to the payout sheet before suit is filed, on December 4, 2000; and
4) Two days later, on December 6, 2000, Defendant furnished Plaintiff’s counsel with the PIP payout sheet, asserting that the log confirmed Defendant’s position that Plaintiff’s bill was consumed by the deductible. (In Defendant’s motion for summary judgment filed on February 2, 2001, it admitted the foregoing facts.);
and concludes:
1) Although Defendant argues that neither the policy nor any pertinent statute (e.g., §§627.736(6)(d), 627.7401, and 627.4137, F. S.) requires that an insurer provide its insured or a provider who by virtue of an assignment, as here, fully stands in the shoes of its insured, with the PIP payout sheet prior to the filing of a PIP action, Defendant is equitably estopped from taking such materially inconsistent position. Such position is irreconcilably at odds with that taken by this insurer in its December 6, 2000 letter which accompanied the belatedly provided payout log. Therein, Defendant’s branch manager advised that the reason that the log had not been earlier furnished was because another representative was under the mistaken impression that Plaintiff had not obtained from the insured an authorization for release of medical information.
2) Accordingly, Defendant’s argument that its representative provided the payout log post-suit as a courtesy to Plaintiff, or in independent compliance with the Rules of Civil Procedure concerning discovery which govern post-suit contexts, in view of the eminent discoverability of PIP payout sheets, is without merit. Its reliance on case decisions which hold that the initial failure to assert a claim of privilege (work product or attorney-client) does not operate as a waiver of the right to later assert the privilege, such as Liberty Mutual Insurance Co. v. Lease America, Inc., 735 So.2d 560 at 561-562 (4th D.C.A. Fla. 1999); and cases which hold insurers’ entire claim files are not discoverable vis-a-vis work product and privileged matters, despite the existence of a pending claim for bad faith, unless and until the underlying contractual claim has been resolved in favor of coverage under the policy; see e.g., Allstate Insurance Co. v. Swanson, 506 So. 2d 497 (5th D.C.A. Fla. 1987), is wholly unpersuasive, as the attempted analogy is illusory in the effort to bolster Defendant’s untenable position. Plaintiff asserts that Defendant’s disclosure was not accompanied by a disclaimer that it was not thereby conceding its position, bolstering the Plaintiff’s position that a confession of judgment had occurred. However, such observation is overshadowed by very recent case decisions which make it quite clear that even though the insured or a provider makes a mistake in providing incorrect information to the insurer, the latter has the overriding statutory responsibility to promptly and thoroughly investigate and verify the claim; an insurer’s good faith in denying a claim is irrelevant, as is any concept of “wrongfulness”; and that in PIP litigation, the focus is outcome-oriented. See Ivey v. Allstate Insurance Co., 774 So.2d 679 at 684-685 (Fla. 2000); Palmer v. Fortune Insurance Co., 26 FLW D278 (5th D.C.A. Fla., January 19, 2001); and United Automobile Insurance Co. v. Zulma, 661 So.2d 947 at 948-949 (4th D.C.A. Fla. 1995). The Defendant insurer, two days after suit, abandoned its position by providing the payout sheet, giving the Plaintiff provider what it had sued for; Defendant’s motivation is irrelevant and its change of position is the functional equivalent of a confession of judgment.
3) Quite apart from the foregoing analysis, and even if the Defendant insurer had not conceded its position, Plaintiff’s declaratory relief claim is granted on the merits. Requiring PIP insurers to provide assignee health care providers with payout logs before the latter file suit makes eminent common, good sense on public policy grounds. Providers armed with the information provided by the payout sheets can make informed decisions as to where they stand in relation to other providers vis-a-vis satisfaction of the deductible. Frivolous, unnecessary litigation may thus be avoided. To rule otherwise would be to place a provider in the untenable, “Catch-22” position of having to sue when it is in the dark, and then being faced with exposure for the imposition of Section 57.105(1), F.S., attorney’s fees when it learns that the deductible wholly consumed its bills. (Indeed, Defendant’s motion for summary judgment does seek the recovery of such fees.) Defendant’s assertion that if Plaintiff prevails, all providers in PIP coverage contexts would be entitled to secure payout logs in advance of suit with the result that overworked and underpaid adjusters could not handle the resultant demands, is patently disingenuous. The additional work would be minimal and the benefits would significantly outweigh such minor burden.
This Court reserves jurisdiction to award Plaintiff’s attorney’s fees, independently of the outcome on Count I of its complaint, seeking damages for breach of contract.
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