15 Fla. L. Weekly Supp. 498a
Insurance -- Personal injury protection -- Declaratory judgment -- Insurer has obligation to provide policy and declarations page on presuit request from assignee/medical provider -- Obligation was not satisfied by furnishing documents to insured at inception of claim
TADROS CLINIC, P.A., a Florida Corporation (assignee of Pierre, Samuel), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-18803 COCE. February 29, 2008. Lisa Trachman, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami; and Rutledge Bradford, for Plaintiff. Brian E. Pabian, for Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT AS TO COUNT II OF
COMPLAINT (DECLARATORY RELIEF RE: RIGHT TO A
COPY OF THE INSURANCE POLICY AND POLICY
DECLARATIONS INFORMATION)
THIS CAUSE came before the Court on hearing on Plaintiff's Motion for Summary Judgment (Count II -- Declaratory Relief regarding right to a copy of the insurance policy and policy declarations information), and the Court's having reviewed the Motion and entire Court file; reviewed the relevant legal authorities; heard argument, and been sufficiently advised in the premises the Court finds as follows:
Background:This is a P.I.P. case. Remaining at issue is Count II of Plaintiff's Complaint which seeks declaratory relief regarding Plaintiff's right to a copy of the insurance policy and declarations page) pursuant to F.S. s. 627.4137. The complaint further requests attorney's fees and costs from Defendant pursuant to F.S. s. 627.428 based upon Plaintiff having to bring suit to enforce its statutory right to this information. The record evidence demonstrates that, in response to Defendant's denial of this claim for failure to comply with policy conditions, Plaintiff (through counsel) submitted multiple pre-suit requests for a copy of the insurance policy and declarations information. It is not disputed by record evidence that, despite repeated requests, the Defendant did not furnish this information to Plaintiff prior to suit.
Conclusions of Law: This court agrees with the reasoning of the overwhelming majority of county and circuit courts that have considered the issue and finds that an assignee medical provider may maintain an action to determine or enforce its right to a copy of the insurance policy and policy declarations page under F.S. s. 627.4137. See, e.g., Integra Diagnostics v. Reliance Nat'l Ind., 8 Fla. L. Weekly Supp. 349c (County Court, Broward 2001); Florida Orthopedic Center, P.A. v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 1234 (County Court, Broward 2006); Scott M. Jablon, D.C. v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 643c (County Court, Broward 2006); American Vehicle Ins. Co. v. Florida Emergency Physicians Kang & Assoc., P.A., 13 Fla. L. Weekly Supp. 973 (18th Circuit Appellate 2006); ROM Diagnostics v. Security Nat'l Ins. Co., 9 Fla. L. Weekly Supp. 323b (County Court, Orange 2002); Rural Metro Ambulance v. Liberty Mut. Ins. Co., 11 Fla. L. Weekly Supp. 69a (County Court, Broward 2003); Palm Beach Regional MRI v. Southern Group Ind. Co., 11 Fla. L. Weekly Supp. 742a (County Court, Palm Beach 2004); Florida Emergency Physicians Kang & Assoc. v. United Auto. Ins. Co., 12 Fla. L. Weekly Supp. 805b (County Court, Seminole 2005); Florida Emergency Physicians Kang & Assoc. v. American Vehicle Ins. Co., 12 Fla. L. Weekly Supp. 774c (County Court, Orange 2005); Florida Emergency Physicians Kang & Assoc. v. American Vehicle Ins. Co., 12 Fla. L. Weekly Supp. 478b (County Court, Orange 2005).
The court is not persuaded by the argument that the insurer somehow satisfied its obligation to provide the Plaintiff with a copy of the insurance policy and declarations page by furnishing the information to the insured at the inception of the claim. Florida Statute s. 627.4137 expressly requires the insurer to furnish this information to the "claimant" upon request. American Heritage Dictionary defines a "claimant" as "a party who makes a claim." As such, the Plaintiff medical provider, who has accepted assignment of benefits for this claim, is a "claimant" entitled to the policy and declarations information.
The court similarly, finds that Florida Statute s. 627.4137 is not limited only to third party or liability claimants. The above cases clearly involved first party P.I.P. claimants and the court finds no logical or statutory distinction. See, e.g., United Auto Insurance Co. v. Rousseau, 682 So. 2d 1229 (Fla. 4th DCA 1996). Put simply, an insurer cannot demand strict compliance with policy conditions on one hand, and then refuse to honor requests for copies of the policy on the other.
ORDERED AND ADJUDGED the Plaintiff's Motion for Summary Judgment is GRANTED. Summary judgment is entered in favor of Plaintiff as to Count II of the complaint. Plaintiff is the prevailing party as to Count II and pursuant to Florida Statute 627.428, Plaintiff has obtained "judgment or decree" entitling Plaintiff to recover from Defendant attorney's fees and costs as to Count II in an amount to be determined at a later hearing. The court reserves jurisdiction to determine the amount of fees and costs.
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15 Fla. L. Weekly Supp. 265b
Insurance -- Personal injury protection -- Coverage is extended to toddler's head injury incurred in fall on seat belt bolt in vehicle floor while playing in parked vehicle because injury resulted from ownership and use of vehicle
EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, LLP., as assignee of Daniel Larue, Plaintiff(s), vs. PROGRESSIVE CASUALTY INSURANCE COMPANY, Defendant(s). County Court, 9th Judicial Circuit in and for Orange County. Case No. 2007-SC-7294-O. November 19, 2007. Antoinette Plogstedt, Judge. Counsel: Rutledge M. Bradford, Orlando. Anthony Parrino, St. Petersburg.
SUMMARY FINAL JUDGMENT FOR PLAINTIFF AND
ORDER DENYING DEFENDANT'S MOTION
FOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before this Court on Plaintiff's Motion for Final Summary Judgment and the Defendant's Motion for Summary Final Judgment and this court having heard arguments of counsel and being otherwise fully advised in the premises, hereby awards a Summary Final Judgment for the Plaintiff and enters an Order denying Defendant's Motion for Final Summary Judgment and further finds, as follows:
1. That the parties agree that there are no material disputed facts.
2. That Amy Gammon is an insured under the policy of insurance issued by Progressive Casualty Insurance Company.
3. That Amy Gammon was and remains the foster care mother of Daniel Larue.
4. That on March 2, 2005, Daniel Larue was in Amy Gammon's care and was approximately 16 months old at the time.
5. That on that date, Amy Gammon took her foster daughters, ages 6, 8, and 9, to their dance class. She allowed the girls to go into their dance class and waited in the parking lot in her Ford Explorer with Daniel Larue and her 22 month old foster child.
6. That while waiting in the parked vehicle with the engine off and the windows open, she released Daniel Larue and the 22 month old from their car seats and allowed them to play inside the vehicle. Daniel Larue climbed into the back area of the vehicle behind the back seats. Amy Gammon moved the front seats all the way forward so that Daniel Larue and the 22 month old would have room to play between the rear of the front seats and the rear seats. While playing in this area, Daniel Larue lost his footing and fell. He hit his head at the point where a front seat safety belt was bolted to the floor and injured himself.
7. That Amy Gammon drove Daniel Larue to Orlando Regional Hospital on March 2, 2005, to have the injury examined and received services from said hospital and Plaintiff, Emergency Physicians of Central Florida, LLC. While at the hospital, she completed an intake form and produced her driver's license, Daniel Larue's Medicaid Card, and her automobile insurance information.
8. That Daniel Larue's injury to his head on March 2, 2005, occurred inside Amy Gammon's Ford Explorer while said vehicle was parked in a parking lot with the engine off and keys out of the ignition and while Daniel was playing inside the vehicle.
9. That Plaintiff submitted the bill for the treatment rendered to Daniel Larue on March 2, 2005. Defendant denied said bill alleging that there was no PIP coverage because the injury did not arise from the ownership, maintenance, or use of the motor vehicle.
It is therefore ORDERED AND ADJUDGED that:
Summary Final Judgment is Granted in favor of the Plaintiff as a matter of law and Defendant's Summary Judgment is hereby Denied.
The Court finds that the toddler's injury is a reasonably foreseeable consequence of the use of the motor vehicle and also arises out of the ownership of the motor vehicle. The Court further finds that there is a nexus between the motor vehicle and the subject injury. In this case, the actual head injury was caused by contact with a bolt that secures the front seat safety belt to the floor, and the Court finds that it is analogous to an injury that occurs when someone is entering or exiting a vehicle. See Blush v. Atlanta Cas. Co., 736 So.2d 1151 (Fla. 1999); Heritage Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 657 So. 2d 925 (Fla. 1st DCA 1995).
In Heritage, a child on a church bus returning from a church field trip was injured when another child threw something and hit him in the head. Even though the vehicle happened to be in motion, the Court found coverage existed, although there was no actual contact between the child's head and the vehicle.
In the instant case, although the vehicle was not in motion, the child actually incurred injury by contact or direct nexus with the bolt on the car. Accordingly, PIP coverage should be extended, pursuant to Section 627.736(1)(a), Florida Statutes, as the injury resulted from the ownership and use of the subject motor vehicle.
Plaintiff shall recover the sum of $99.00 from the Defendant, PROGRESSIVE CASUALTY INSURANCE COMPANY, for which let execution issue. The Court hereby awards interest, costs, and attorneys' fees to the Plaintiff, but reserves jurisdiction to determine the amounts.
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14 Fla. L. Weekly Supp. 1170a
Insurance -- Personal injury protection -- Standing -- Assignment -- Validity -- "Consent to Treatment and Authorizations Guarantee" is assignment of benefits -- Pre-suit request for copy of declarations page, PIP log or information normally compiled therein, and policy must be honored by insurer -- Coverage -- Exhaustion of policy limits -- Priority of payments -- Hospital lien not recorded within ten days of insured's discharge from hospital was not timely recorded and should not have taken priority over medical provider's bills which were received by insurer prior to receipt of actual hospital bill
FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, MD, PA as assignee of Michael Brummitt (Apopka), Plaintiff, vs. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-3343. FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, MD, PA as assignee of Michael Brummitt (Orlando), Plaintiff, vs. GEICO GENERAL INSURANCE COMPANY, Defendant. Case No. 04-SC-3344. September 24, 2007. Donald L. Marblestone, Judge, for C. Vernon Mize, Senior Judge. Counsel: Mark A. Cederberg, Rutledge Bradford Attorneys at Law, Orlando. Robert Bartels, Orlando.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON COUNT II OF PLAINTIFF'S COMPLAINT
AND DENYING DEFENDANT'S MOTION FOR FINAL
SUMMARY JUDGMENT
THIS CAUSE having come before this Court on Plaintiff's Motion for Summary Judgment on Count II of Plaintiff's Complaint and supporting Memorandum of Law (certificate of service date April 11, 2007) and Defendant's Motion for Final Summary Judgment (certificate of service date May 17, 2007 and supporting Memorandum of Law (certificate of service date June 5, 2007), and this Court having reviewed the file and the parties briefs, having heard argument of both counsel and having considered relevant Florida law, finds as follows:
1. On, or about, January 8, 2003, Michael Brummitt was involved in a motor vehicle accident wherein he sustained significant injuries and required emergency medical care.
2. Mr. Brummitt received emergency medical care from the Plaintiff at Florida Hospital Apopka and Florida Hospital Orlando on January 8, 2003 (he was transferred from Florida Hospital Apopka to Florida Hospital Orlando based on the seriousness of his injuries).
3. The Defendant issued an automobile insurance policy to Michael Brummitt entitling Mr. Brummitt to receive no-fault (PIP) benefits as a result of the January 8, 2003 accident.
4. The Plaintiff submitted its bills for care rendered to Mr. Brummitt to the Defendant for payment under the subject policy of insurance.
5. Despite receiving medical bills from the Plaintiff on February 6, 2003 (Florida Hospital Apopka) and February 24, 2003 (Florida Hospital Orlando), the Defendant failed or refused to make payment on the bills, claiming that benefits were exhausted to Florida Hospital Orlando based on a lien it had received. However, the lien was not recorded until February 12, 2003, more than one month following Mr. Brummitt's discharge from the hospital.
6. Thereafter, the Plaintiff sent Notices of Intent to Initiate Litigation to the Defendant on June 25, 2004, as well as demands for a declarations page, copy of the policy and a PIP log, pursuant to Florida Statutes 627.4137, 627.7401 and 627.736(6)(d). These Notices were received by the Defendant on June 30, 2004.
7. Along with the Notices of Intent to Initiate Litigation, the Plaintiff also sent copies of a document entitled "Consent to Treatment and Authorizations and Guarantee," upon which it relied as an assignment of benefits. The assignment of benefits expressly states that "I [Michael Burmmitt] assign payment directly to the Hospital and my physician(s) (emphasis added), the insurance benefits otherwise payable to me." Additionally, the document states in bold letters "THIS ASSIGNMENT OF BENEFITS IS IRREVOCABLE."
8. In response to Plaintiff's above-referenced demand, the Defendant responded that benefits were exhausted. The Defendant provided a PIP/Med-Pay register which essentially is a check register, showing only the payment that was made to the hospital. The PIP/Med-Pay register did not show the date that the hospital bill was received or any information regarding other bills received. The Defendant failed to provide a copy of a PIP log that would allow the Plaintiff to confirm that benefits were: 1) indeed exhausted and 2) if exhausted, whether benefits were exhausted properly by allowing a review of what bills were received when, what amounts those bills were and whether they were paid, applied to the deductible or treated in some other fashion.
9. On July 19, 2004, the Plaintiff again wrote to the Defendant and requested a PIP log that would allow the Plaintiff to verify if the benefits were properly exhausted and when the Plaintiff's bills were received as well as a copy of the declarations page and the policy. Again, the Defendant failed to provide a copy of the PIP log that would have allowed the Plaintiff to determine whether benefits were exhausted, and, if so, whether PIP benefits were exhausted properly.
10. On, or about, September 15, 2004, the Plaintiff filed suit for breach of contract and declaratory relief pursuant to Florida Chapter 86, seeking disclosure of certain insurance information required by Fl. Stat. 627.4137 and 627.7401.
11. Just prior to the hearing on June 6, 2007, the parties stipulated to the consolidation of the two (2) above-referenced cases.
It is hereby ORDERED AND ADJUDGED:
1. Plaintiff's Motion for Summary Judgment on Count II is GRANTED.
2. Defendant's Motion for Final Summary Judgment is DENIED.
3. The Court finds, as a matter of law, that the document entitled "Consent to Treatment and Authorizations Guarantee," is an assignment of benefits, and, accordingly, the Plaintiff has standing to bring this cause of action. See Florida Emergency Physicians a/a/o Marvene Jones v. Progressive, 12 Fla. L. Weekly Supp. 805b (County Court for Seminole County 2005) and State Farm Mutual Automobile Insurance Co. v. Florida Emergency Physicians, Kang & Associates, MD, PA a/a/o Robert Davis, Appeal No. 06-51-AP (18th Judicial Circuit, Appellate Division, March 13, 2007) [14 Fla. L. Weekly Supp. 418a].
4. The Court finds, and Florida law is well-settled in this respect, that a pre-suit request for a copy of the declarations page, PIP log (or information normally compiled therein) and policy of insurance must be honored by the Defendant. See New Hampshire Indemnity Insurance Co. vs. Rural Metro Ambulance a/a/o William Zaniboni, Case No. 04-72-AP (18th Judicial Cir., Appellate Division, November 18, 2005) [13 Fla. L. Weekly Supp. 573a], certiorari denied, 5D-05-4331 (Fla. 5th DCA, April 5, 2006); Progressive Express Insurance Co. v. Physical Medicine Group, a/a/o Audra Isaacson, 13 Fla. L. Weekly Supp. 972a (18th Judicial Circuit Ct., Appellate Div. May 11, 2006); Florida Emergency Physicians a/a/o William Eve v. American Vehicle Insurance Co., 13 Fla. L. Weekly Supp. 973a (18th Judicial Circuit Ct. Appellate Div. April 21, 2006); GEICO General Insurance Company v. Florida Emergency Physicians, Kang And Associates, M.D., PA., a/a/o Camille Davila, 06-59-AP, Fla. 18th Cir. App., December 18, 2006 [14 Fla. L. Weekly Supp. 238a]; GEICO General Insurance Company v. Florida Emergency Physicians Kang & Associates, M.D., P.A. as assignee of Jose Fret, 14 Fla. L. Weekly Supp. 232a (18th Judicial Circuit Ct., Appellate Div., January 29, 2007); GEICO General Insurance Company v. Florida Emergency Physicians Kang & Associates, M.D., P.A. as assignee of Brandon Taylor, 06-50-AP (18th Judicial Circuit Ct., Appellate Div., January 23, 2007); American Vehicle Insurance Company v. Florida Emergency Physicians Kang & Associates, M.D., P.A. as assignee of Carrico, Case No. CVA1 05-17 (9th Judicial Circuit, Appellate Div., January 26, 2007) [14 Fla. L. Weekly Supp. 352a] ("we hold that a PIP carrier is required by Sections 627.736(6)(d) and 627.4137, Florida Statutes to provide insurance information to an insured or the assignee of the insured); Florida Emergency Physicians Kang & Associates, M.D., P.A. a/a/o Freddie Walker vs. Geico Indemnity Company, Case No. 04-SC-1488 (18th Judicial Circuit, March 1, 2007) (Order Denying Defendant's Motion for Final Summary Judgment (Judge V. Mize) and Marcus Laws vs. Florida Automobile Joint Underwriting, 12 Fla. L. Weekly Supp. 566a (Fla. Duval Cty. 2005).
5. The Court also finds that, as a matter of law, the Florida Hospital lien, upon which the Defendant relied upon in exhausting PIP benefits in this case, to the detriment of the Plaintiff, was not recorded until February 12, 2003. Since the lien was not recorded within ten (10) days of the patient's discharge (which was on, or around, January 10, 2003), the lien was not recorded timely and the hospital bill in question should not have taken priority over the Plaintiff's bill(s) received prior to the Defendant's receipt of the actual hospital bill. See Emergency Physicians of Central Florida a/a/o Carlos Lopez vs. Geico General Insurance Company, Case No. 05-SC-2145 (18th Judicial Circuit, December 6, 2006) (Order Granting Plaintiff's Motion for Final Summary Judgment) (Judge John R. Sloop) and Public Health Trust of Dade County v. Carroll, 509 So.3d 1232 (Fla. 4th DCA 1987). See also Article IV, Hospital Liens for Medical Care, Sec. 20-157, Code 1965, § 17-18; Laws of Fla. ch. 57-1644, § 2.
6. The Court finds that the Plaintiff is entitled to an award of attorneys' fees and costs in this matter (Florida Emergency Physicians Kang & Associates, MD, PA a/a/o Michael Brummitt (Apopka), Case No. 04-SC-3343 and Florida Emergency Physicians Kang & Associates, MD, PA a/a/o Michael Brummitt (Orlando), Case No. 04-SC-3344) and reserves jurisdiction as to amount.
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