Published Court Orders and Opinions Obtained By Bradford Cederberg Lawyers
Below are published opinions and court orders obtained on a variety of
PIP related litigation by the lawyers of Bradford Cederberg
21 Fla. L. Weekly Supp. 78a
Online Reference: FLWSUPP 2101SCHU
Insurance -- Personal injury protection -- Small claims -- Doctrine of
de minimis non curat lex does not preclude small claims action seeking
$3.36 in PIP benefits
ORTHOPAEDIC CLINIC OF DAYTONA BEACH, P.A., as assignee of Penny Schuerer,
Plaintiff, v. PEAK PROPERTY AND CASUALTY INSURANCE CORPORATION, Defendant.
County Court, 7th Judicial Circuit in and for Volusia County. Case No.
2011 31155 COCI, Division 84. August 13, 2013. Dawn P. Fields, Judge.
Counsel: Robert Bartels, Bradford Cederberg, Orlando, for the Plaintiff.
Eric Biernacki, Orlando, for Defendant.
ORDER
THIS MATTER having come before this Honorable Court on Defendant's
Motion for Final Summary Judgment Based on the Doctrine of De Minimis
Non Curat Lex and Motion for Protective Order, Plaintiff's Motion
to Compel Deposition, Motion to Compel Responses to Request to Produce
and Motion to Compel Answers to Interrogatories, and this Honorable Court
having heard arguments of counsel and being otherwise fully advised in
the premises, hereby makes the following Finding of Fact and Conclusions of Law:
This is a breach of contract action in which Plaintiff filed suit seeking
reimbursement for $3.36 for insurance benefits that were underpaid. Defendant's
filed a Motion for Summary Judgment and asserted that, based on the Doctrine
of De Minimis Non Curat Lex, the case should be dismissed.
The Court finds that the Legislature created small claims court to deal
with actions at law in which the demand or value of property invoked does
not exceed $5,000 exclusive of costs, interest and attorney fees. Fla.
Sm. Cl. R. 7.010. Although there is a maximum amount for small claims
action, there is no minimum amount that must be pled to invoke the Court's
jurisdiction.
If the Court were to grant Defendant's Motion then it would be ignoring
the legislative intent and purpose behind the creation a Small Claims
Courts and could also potentially have a chilling effect on future litigants
seeking to address their issues in Court.
This Court is persuaded by Karow Chiropractic Center PA a/a/o Ronny Alguera
v. State Farm Mutual Automobile Insurance Company, Broward County Case
No: 502012SC012645XXXXSB February 5, 2013. [20 Fla. L. Weekly Supp. 518a]
Florida law does not support a position of de minimis non curat lex in
small claims personal injury protection matters for breach of contract
and unpaid benefits. Since there is no binding case law in Florida on
the application of de minimis non curat lex to personal injury protection
matters, the court is limited to the controlling provisions of both the
Article 5, Section 20 of the Constitution of the State of Florida and
Florida Statutes and Small Claims Rules.
Accordingly, Defendant's Motion for Final Summary Judgment is Denied.1
Plaintiff's Motion to Compel the deposition of the adjuster is hereby GRANTED.
Within thirty days of this order, Defendant shall provide available dates
for the deposition to occur within ninety days from entry of this Order.
Plaintiff shall also provide deposition dates of its corporate representative
to occur within ninety days from entry of this order.
Defendant withdraws its Motion for Protective Order and, therefore, Plaintiff's
Motions to Compel answers to Interrogatories and Request to Produce is
DENIED AS MOOT. Defendant shall provide discovery responses within thirty
days from entry of this order.
__________________
1Plaintiff's Ore Tenus Motion for Partial Summary Judgment as to defendant's
affirmative defense of De Minimis Non Curat Lex is denied as moot based
on Defendant's withdrawal, on the record, of the tenth affirmative
defense of De Minimis Non Curat Lex.
* * *
21 Fla. L. Weekly Supp. 75c
Online Reference: FLWSUPP 2101BROW
Insurance -- Personal injury protection -- Coverage -- Medical expenses
-- PIP policy that references "applicable fee schedule," but
is devoid of any reference to section 627.736(5)(a)2.f or specific limitations
of which insurer intends to avail itself, does not clearly and unambiguously
notify insured and medical provider of insurer's intent to limit reimbursement
to permissive statutory fee schedule
STAND-UP MRI & DIAGNOSTIC CENTER, P.A., asassignee of Tamara Brown,
Plaintiff(s), v. ASSURANCEAMERICA INSURANCE COMPANY, Defendant(s). County
Court, 7th Judicial Circuit in and for Volusia County, Division 82. Case
No. 2012-34575-2013. May 23, 2013. Christopher Kelly, Judge. Counsel:
Rutledge M. Bradford, Bradford Cederberg, P.A., Orlando, for Plaintiff.
Timothy S. Kazee, Deland, FL, for Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR
FINAL SUMMARY JUDGMENT AND DENYING
DEFENDANT'S MOTION FOR FINAL
SUMMARY JUDGMENT
THIS MATTER having come before this Honorable Court for hearing on May
13, 2013 on Plaintiff's and Defendant's competing motions for
summary judgment and having heard the arguments of counsel and being otherwise
fully advised in the premises the Court finds as follows:
FINAL SUMMARY JUDGMENT AND DENYING
DEFENDANT'S MOTION FOR FINAL
SUMMARY JUDGMENT
THIS MATTER having come before this Honorable Court for hearing on May
13, 2013 on Plaintiff's and Defendant's competing motions for
summary judgment and having heard the arguments of counsel and being otherwise
fully advised in the premises the Court finds as follows:
FINDINGS OF FACT
1. The parties entered into a Joint Stipulation of Facts and Exhibits and
the Court hereby adopts those facts and exhibits as follows:
a. On February 24, 2012, Tamara Brown ("Brown") was involved
in a motor vehicle accident.
b. On February 24, 2012, Brown was covered by a policy of insurance issued
by ASSURANCEAMERICA INSURANCE COMPANY ("Defendant") that was
in full force and effect.
c. The insurance policy provided Personal Injury Protection (PIP) coverage
in the amount of $10,000 and the policy had a $1,000 deductible inclusive
of residential relatives. There was no medical payments coverage on the policy.
d. As a result of the February 24, 2012 accident, Brown presented to Stand-Up
MRI and Diagnostic Center, P.A., (Stand-Up) on May 1, 2012 and received
treatment and care from Plaintiff.
e. The services rendered by Stand-Up were for CPT Codes 72148. The medical
services were reasonable, related and medically necessary.
f. Stand-Up charged $1600.00 for its services. Stand-Up's charges were
reasonable.
g. Defendant utilized the Medicare Fee Schedule to reduce Stand-Up's
bill from $1,600.00 to $1,066.28. Defendant then paid eighty percent (80%)
of the reduced amount, and issued payment in the amount of $853.02.
h. The parties agree that the facts are not in dispute and that the above-described
exhibits are admissible.
i. Defendant waives any and all Affirmative Defenses that have not been
withdrawn, except that its policy enables Defendant to pay pursuant to
the fee schedule.
j. The issue in this case is "whether the Defendant's insurance
policy, as written, allows the Defendant to utilize the Medicare Fee Schedule
in Fla.Stat. §627.736(5)(a)(2)." If the Court answers the question
in the affirmative, then the Defendant is entitled to Final Summary Judgment.
If the Court answers the question in the negative, then the Plaintiff
is entitled to Final Summary Judgment in the amount of $426.98 for underlying
benefits due and all statutory interest due.
ANALYSIS
The sole dispute for the Court to resolve is whether the Defendant's
insurance policy, as written, allows the Defendant to utilize the permissive
fee schedule limitations ("Fee Schedule") set forth in Fla.
Stat. § 627.736(5)(a)(2). The Plaintiff contends that Defendant's
policy language is insufficient to permit the Defendant to limit reimbursement
pursuant to the Fee Schedule. The Defendant contends that its policy clearly
and unambiguously elects to limit liability pursuant to the Fee Schedule.
Florida Statutes
The Florida legislature established two separate and distinct payment methodologies.
The first methodology is found in 627.736(1)(a) and 627.736(5)(a)(1) which provides:
(a) Medical benefits. -- Eighty percent of all reasonable expenses for
medically necessary medical, surgical, X-ray, dental, and rehabilitative
services, including prosthetic devices and medically necessary ambulance,
hospital, and nursing services.
(5) Charges for Treatment of Injured Persons. --
(a)1. Any physician, hospital, clinic, or other person or institution lawfully
rendering treatment to an injured person for a bodily injury covered by
personal injury protection insurance may charge the insurer and injured
party only a reasonable amount pursuant to this section . . . .
The second methodology is permissive and is found at 627.736(5)(a)(2)(f)
and provides:
2. The insurer may limit reimbursement to 80 percent of the following schedule
of maximum charges:
. . .
f. For all other medical services, supplies, and care, 200 percent of the
allowable amount under the participating physicians schedule of Medicare Part B.
Defendant's Policy Language
The Defendant's insurance policy, PART II -- PERSONAL INJURY PROTECTION
("PIP"), describes the amounts Defendant will pay for medical
expenses as follows:
Subject to the limits of liability, if you paid the premium for Personal
Injury Protection ("PIP") when due, we will pay:
1. 80% of all medical expenses;
The Defendant points to three separate provisions within the policy to
support its argument that it clearly and unambiguously adopted the Fee
Schedule, as permitted by Florida Statute, thereby limiting its obligation
to otherwise reimburse 80% of all medical expenses.
The first is under "Additional Terms for Part II", which provides
as follows: PIP is subject to the following:
2. Any dispute as to medical expenses will be resolved between the service
provider and us. If the insured person is sued for payment for any medical
expense that we refuse to pay because:
* * *
b. The fee exceeds the applicable fee schedules under federal or state
law for medical expenses;
* * *
we will defend the insured person with an attorney of our choice. We will
pay defense costs and any judgment against the insured person up to our
limit of liability. . . .
The second is under "Additional Definitions for Part II Only"
which provides as follows:
5. "Medical expenses" means reasonable expenses for medically
necessary:
a. Medical, surgical, X-ray, dental, and rehabilitative services. . .
when allowed by the No-Fault Law and subject to the applicable fee schedules
and payment limitations that apply.
The third is under the "Limit of Liability" which provides asfollows:
When determining the amount that we will pay under this coverage, we will
apply any limitation and federal or state medical fee schedules applicable
to automobile or other insurance coverages permitted by law. No one shall
be entitled to payment for medical expenses incurred for services, supplies,
treatment or care in any amount that is more than the maximum reimbursement
allowance set forth in the fee schedules, payment limitations, and other
payment guidelines of the No-Fault Law and/or any schedules and limitations
under federal or state law for medical expenses.
CONCLUSIONS OF LAW AND RULING
Both the Third and Fourth District Courts of Appeal have addressed the
issue before this Court, finding that an insurer intending to limit its
reimbursement of medical expenses utilizing the permissive fee schedule
limitations set forth in Fla. Stat. 627.736 (5)(a)(2), must "clearly
and unambiguously" set forth the limitation in the policy. Kingsway
Amigo Insurance Company v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA
2011) [36 Fla. L. Weekly D1062a]; DCI MRI, Inc. v. Geico Indem. Co. 79
So.3d 840 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D170e]; and Geico v.
Virtual Imaging Services, Inc., 79 So. 3d 55 (Fla. 3d DCA 2011) [36 Fla.
L. Weekly D2597a]. Moreover, any such limitation must be done so "in
a manner so that the insured patient and healthcare providers would be
aware of it." Geico v. Virtual Imaging 79 So.3d at 57 (quoting State
Farm Insurance Co. v. Nichols, 21 So.3d 904 (Fla. 5th DCA 2009) [34 Fla.
L. Weekly D2275b]).
Defendant contends that the three separate provisions in its policy that
reference "applicable fee schedules," is a clear and unambiguous
election to limit its liability under Fla. Stat. §627.736(5)(a)(2)(f).
However, the policy is devoid of any reference whatsoever to §627.736(5)(a)(2)(f)
or the specific limitations of which Defendant intends to avail itself.
If Defendant's intent was to limit its liability to something other
than 80% of reasonable medical expenses, it must do so clearly and unambiguously,
and passing references to otherwise undefined "applicable fee schedules,"
which must be searched out in various provisions of the policy, simply
do not satisfy the mandates set forth in Kingsway v. Ocean Health, DCI
MRI v. Geico and Geico v. Virtual Imaging.
Insurance policies are construed according to their plain meaning, with
any ambiguities construed against the insurer. State Farm Mutual Auto.
Ins. Co. v. Menendez, 70 So.3d 566, 570 (Fla. 2011) [36 Fla. L. Weekly
S469a]. The Court finds that Defendant's policy does not clearly and
unambiguously notify the insured patient and the medical provider of Defendant's
intent to limit reimbursement pursuant to Fla. Stat. §627.736(5)(a)(2)(f).
WHEREFORE, it is
ORDERED AND ADJUDGED that:
A. The Plaintiff's Motion for Final Summary Judgment is GRANTED;
B. The Defendant's Motion for Final Summary Judgment is DENIED;
C. Final Judgment is hereby entered in favor of the Plaintiff, STAND-UP
MRI & DIAGNOSTIC CENTER, P.A., as assignee of Tamara Brown, wherein
Plaintiff shall recover from Defendant, ASSURANCEAMERICA INSURANCE COMPANY,
the total sum of $426.98 for underlying benefits due and all statutory
interest, which sum let execution issue;
D. Plaintiff is entitled to its reasonable attorneys' fees and costs; and
E. The Court reserves jurisdiction to determine the amount of attorneys'
fees and costs to Plaintiff pursuant to Fla. Stat. §§627.736,
627.428 and 57.041.
Page 2 >>