15 Fla. L. Weekly Supp. 1232a
Insurance -- Personal injury protection -- Declaratory judgment -- Insurer is required to provide copy of declarations page and policy to medical provider/assignee presuit
FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, M.D., P.A., as assignee of Mary Prazak, Plaintiff, vs. GEICO CASUALTY INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-2124. October 3, 2008. Donald L. Marblestone, Judge. Counsel: Mark A. Cederberg, Rutledge Bradford Attorneys At Law, Orlando. Robert D. Bartels, Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando.
ORDER GRANTING PLAINTIFF'S MOTION FOR FINAL
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 Final Summary Judgment on Count II of Plaintiff's Complaint and supporting Memorandum of Law (bearing certificate of service date December 6, 2007) and Defendant's Motion for Final Summary Judgment and supporting Memorandum of Law (bearing certificate of service date June 5, 2008), and this Court having reviewed the file and the parties' Motions, having heard argument of counsel and having considered relevant Florida law, finds as follows:
1. On, or about, August 9, 2003, Mary Prazak was involved in a motor vehicle accident wherein she sustained injuries.
2. As a result of her injuries, Ms. Prazak presented to the emergency room at Florida Hospital East on August 9, 2003 wherein she provided GEICO insurance information and received emergency medical care from the Plaintiff.
3. On, or about September 2, 2003, the Plaintiff submitted its bill for care and treatment rendered to Ms. Prazak to the Defendant and the bill went unpaid. More specifically, the Plaintiff received an Explanation of Benefits form dated September 9, 2003 from the Defendant advising that the bill at issue was not paid because "80% apply (sic) towards deductible."
4. Thereafter, on April 27, 2004, a Notice of Intent to Initiate Litigation was sent to the Defendant's designee pursuant to Florida law and was received by the Defendant on April 29, 2004. Included in the Notice package was a request for a copy of the policy of insurance, declarations page and PIP log. The request for insurance information was made pursuant to Fl. Stat. §627.4137.
5. On, or about May 5, 2004, the Defendant responded to Plaintiff's Notice of Intent to Initiate Litigation by stating that the Plaintiff's bill was not paid because the Defendant's investigation revealed that the bill was "applied towards the deductible as the policy calls for a $2,000.00 deductible." The Defendant failed to provide a copy of the requested declarations page and policy.
6. On May 19, 2004, the Plaintiff again wrote to the Defendant and requested a copy of the declarations page and policy of insurance so that the Plaintiff could verify the PIP deductible and confirm that the Defendant properly applied the Plaintiff's bill to the PIP deductible.
7. The Defendant failed to respond to the Plaintiff's second request for insurance information. Accordingly, the Plaintiff was left in doubt as to whether it had a claim for breach of contract.
8. On June 9, 2004, the Plaintiff filed suit for breach of contract and declaratory relief pursuant to Florida Chapter 86 against Defendant GEICO General Insurance Company regarding Plaintiff's right to obtain, pre-suit, disclosure information, including the declarations page and policy of insurance. The Defendant's failure to provide a copy of the declarations page and policy of insurance in this case, pre-suit, necessitated the filing of the instant lawsuit.
9. During the course of discovery, on March 1, 2005, the deposition of the Defendant's Corporate Representative, Rebecca Schatzow was taken. For the first time, the Defendant asserted the position that the Plaintiff's bill was not paid not because of a PIP deductible, but because Ms. Prazak's policy of insurance with the Defendant had non-renewed prior to the subject motor vehicle accident; therefore, Ms. Prazak was not covered by the Defendant at the time of the accident. Additionally, Ms. Schatzow testified that the Defendant could have produced the equivalent of a declarations page and a copy of the policy of insurance pre-suit, but the Defendant failed or refused to produce the documents.
10. On September 14, 2006, the Court entered an Order granting Plaintiff's Motion for Leave to Amend Its Complaint to name the correct GEICO entity as a Defendant, to wit: GEICO Casualty Company.
11. Prior to the hearing on the parties' Motions for Final Summary Judgment, the Plaintiff dismissed Count I of its Complaint for Breach of Contract.
It is hereby ORDERED AND ADJUDGED that:
1. Plaintiff's Motion for Final 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 Kang & Associates, as assignee of Michael Brummitt v. GEICO General Insurance Company, 14 Fla. L. Weekly Supp. 1170a (Seminole County, September 24, 2007) and Florida Emergency Physicians Kang & Associates, as assignee of Freddie Walker v. GEICO Indemnity Company, 14 Fla. L. Weekly Supp. 1167b (Seminole County, September 12, 2007).
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 and policy of insurance must be honored by the Defendant. See New Hampshire Indemnity Insurance Co. v. Rural Metro Ambulance, as assignee of William Zaniboni, Case No. 04-72-AP (18th Judicial Cir., Appellate Division, November 18, 2005) [13 Fla. L. Weekly Supp. 573a], cert. denied, 5D-05-4331 (Fla. 5th DCA, April 5, 2006) and its progeny and State Farm Mutual Automobile Insurance Company v. Florida Emergency Physicians Kang & Associates, as assignee of Robert Davis, Case No. 06-51-AP (18th Judicial Cir., Appellate Division, June 18, 2008) on remand.
5. The Court further finds that, as a matter of law, the Plaintiff in this matter is considered to be a "claimant" pursuant to Fl. Stat. §627.4137, and is therefore entitled to receive a certified copy of the declarations page and policy of insurance, from the Defendant, pre-suit. See United Automobile Insurance Company v. Jeanne Rousseau, 682 So.2d 1229 (Fla. 4th DCA 1996) and Stuyvesant Insurance Company v. Dorothy Johnson, 307 So.2d 229 (Fla. 4th DCA 1975).
6. The Court further finds that, as a matter of law, the Plaintiff's Amended Complaint, filed on September 14, 2006, relates back to the date of the original Complaint pursuant to Florida Rules of Civil Procedure 1.190.
7. Lastly, the Court finds that the Plaintiff is entitled to an award of attorneys' fees and costs incurred in the litigation of this matter and reserves jurisdiction as to the amount of such award.
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15 Fla. L. Weekly Supp. 1030a
Insurance -- Personal injury protection -- Declaratory judgment -- Unsworn, unsigned fax letter from insurer's adjuster and cancellation language included on installment notice did not satisfy requirement that insurer provide statement under oath of corporate officer, claim manager, or superintendent setting forth any policy or coverage defense as requested in demand letter -- Standing -- Assignment is facially sufficient to create standing for medical provider to maintain declaratory judgment action -- Suit for declaratory relief is appropriate where provider was left in doubt as to its rights
ROBERTS ORTHOPAEDIC CLINIC, P.A., as assignee of Suheily Lopez, Plaintiff, vs. SENTRY INSURANCE, A MUTUAL COMPANY F/K/A VIKING INSURANCE COMPANY OF WISCONSIN, AND DOING BUSINESS AS PEAKE PROPERTY AND CASUALTY INSURANCE, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 07-SC-003489. July 18, 2008. Donald L. Marblestone, Judge. Counsel: Donna C. Wyatt, Rutledge Bradford Attorneys at Law, Orlando. Aaron E. Leviten, Winter Park.
ORDER GRANTING PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT ON COUNT II
THIS MATTER having come before this Court on Plaintiff's Motion for Summary Judgment on Count II and this Court having heard arguments of counsel and being otherwise fully advised in the premises, finds as follows:
Suheily Lopez was involved in an automobile accident on January 2, 2007, and was treated by the Plaintiff, Roberts Orthopaedic Clinic, on April 23, 2007. Plaintiff accepted an assignment of benefits from Lopez and on April 24, 2007, submitted a statement of charges to the Defendant, Sentry Insurance, a Mutual Company f/k/a Viking Insurance Company of Wisconsin d/b/a Peake Property and Casualty Insurance Company.
The affidavit filed by the Plaintiff established that no response to the billing was received from Defendant. A Demand and Notice of Intent to Initiate Litigation was sent to the Defendant on June 20, 2007, and received by the Defendant on June 25, 2007. The Demand requested a copy of the policy, declarations page and a sworn statement of a corporate officer, claim manager or superintendent setting forth a statement of any policy or coverage defense pursuant to 627.4137, Florida Statutes.
On July 2, 2007, the Defendant responded to the Demand by providing an unsigned, unsworn fax letter by its adjuster that the policy had cancelled for nonpayment of premium and cancellation documents had been ordered and would be forwarded upon receipt.
On July 11, 2007, the adjuster faxed a cover sheet indicating the cancellation documents were attached. Attached was an "Installment Notice" which contained language that if the premium was not paid by a certain date, the policy was cancelled along with proof of mailing of the document to its insured, Liden Rosario. Nothing on the documents provided advised the Plaintiff that the premium had, in fact, not been paid and no sworn statement was provided.
An Amended Complaint was filed on August 23, 2007. Count I was a claim for breach of contract; Count II requested declaratory relief. On February 25, 2008, the Defendant filed an affidavit of Doug Owens establishing that no premium was received from its insured, Liden Rosario, prior to the automobile accident and the policy had cancelled for nonpayment on December 6, 2007. This Court previously granted the Defendant's Motion for Summary Judgment as to Count I and denied it as to Count II. Plaintiff now seeks summary judgment as to Count II.
IT IS HEREBY ORDERED AND ADJUDGED:
1. Plaintiff's Motion for Summary Judgment as to Count II is GRANTED.
2. The Court finds that the Defendant failed to comply with 627.4137, Florida Statutes. The Court finds that 627.4137, Florida Statutes requires the Defendant to provide a statement under oath of a corporate officer, claim manager or superintendent setting forth a statement of any policy or coverage defense. The unsworn, unsigned fax letter from the Defendant's adjuster and cancellation language included on the Installment Notice did not provide information pursuant to 627.4137, Florida Statutes. The Court finds the holding of New Hampshire Insurance Company v. Rural Metro Ambulance a/a/o William Zaniboni, 13 Fla. L. Weekly Supp. 573a controls in this matter and that the provisions of 627.4137, Florida Statutes applies to PIP actions. This finding is consistent with the previous rulings by this court in Florida Emergency Physicians a/a/o Douglas Watkins v. Progressive Express Insurance Company, 14 Fla. L. Weekly Supp. 1167a (September 19, 2007) and Florida Emergency Physicians a/a/o Freddie Walker, 14 Fla. L. Weekly Supp 1167b (September 12, 2007).
3. Moreover, this Court finds that the assignment of benefits relied upon by Plaintiff to be facially sufficient to create standing to maintain Plaintiff's Declaratory Judgment action and, further, that the Plaintiff was left in doubt as to its rights and a suit for declaratory relief is proper under these circumstances. Higgins v. State Farm Fire & Casualty Company, 894 So.2d 5 (Fla. 2004).
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15 Fla. L. Weekly Supp. 638a
Insurance -- Personal injury protection -- Notice of loss -- Disclosure and acknowledgment form -- Where medical records and bills were submitted to insurer with standard D&A form, insurer was on notice of services and treatment rendered
COMPLETE WELLNESS MEDICAL CENTER OF SANFORD, INC., as assignee of Bruce Rabin, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY f/k/a PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 06-SC-4330. March 27, 2008. Donald L. Marblestone, Judge. Counsel: Donna C. Wyatt, Rutledge Bradford Attorneys At Law, Orlando. Robert D. Bartels, Orlando.
ORDER DENYING DEFENDANT'S MOTION
FOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before this Court on Defendant's Motion for Final Summary Judgment and this Court having heard arguments of counsel and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED that:
1. Defendant's Motion for Summary Judgment is DENIED. The Court finds that Plaintiff complied with the requirements of 627.736(5)(e) based on the affidavit of Carol Yandell that billing and corresponding medical records were submitted to the Defendant with the Standard Acknowledgment and Disclosure Form and, therefore, Defendant was on actual notice of the services and treatment rendered.
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