20 Fla. L. Weekly Supp. 924b

Online Reference: FLWSUPP 2009BJOR

Insurance -- Complaint -- Amendment -- Motion to amend complaint to add count for violation of Unfair Insurance Trade Practices Act is granted

FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, M.D., P.A., as assignee of Gerald Bjorgo, Plaintiff, v. OWNERS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2012-SC-4146-O. June 14, 2013. Wilfredo Martinez, Judge. Counsel: Mark A. Cederberg, Bradford Cederberg P.A., Orlando, for Plaintiff. Bret Dubbert, Orlando, for Defendant.

ORDER ON PLAINTIFF'S MOTION

FOR LEAVE TO AMEND COMPLAINT

THIS MATTER having come before this Honorable Court on June 14, 2013 on Plaintiff's Motion for Leave to Amend Complaint bearing certificate of service date March 26, 2013 and this Honorable Court having heard arguments of counsel, having reviewed the court file and having reviewed the applicable law and being otherwise fully advised in the premises, it is hereby,

ORDERED AND ADJUDGED that:

1. Plaintiff's Motion for Leave to Amend Complaint to add Count II-Violation of Florida's Unfair Insurance Trade Practices Act is GRANTED; however, Count II-Violation of Florida's Unfair Insurance Trade Practices Act is ABATED until such time as the Court has made a determination in favor of the Plaintiff on the breach of contract claim (Count I).

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20 Fla. L. Weekly Supp. 732b

Online Reference: FLWSUPP 2007BURK

Insurance -- Personal injury protection -- Evidence -- Judicial notice -- Policy endorsement

STAND-UP MRI & DIAGNOSTIC CENTER, P.A., as assignee of Lekisha Burke, Plaintiff, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 2012-SC-360. December 10, 2012. Jerri L. Collins, Judge. Counsel: David B. Alexander, Bradford Cederberg, Orlando, for Plaintiff. Maddge B. Penton, Orlando, for Defendant.

ORDER ON PLAINTIFF'S MOTION FOR JUDICIAL

NOTICE OF LIBERTY MUTUAL INSURANCE

COMPANY'S POLICY ENDORSEMENT -- AS 2090 08 12

THIS MATTER having come before this Honorable Court on Plaintiff's Motion For Judicial Notice Of Liberty Mutual Insurance Company's Policy Endorsement -- AS 2090 08 12 and this Honorable Court having heard arguments of counsel on October 25, 2012 and being otherwise fully advised in the premises, it is hereby,

ORDERED AND ADJUDGED that:

1. Plaintiff's Motion For Judicial Notice Of Liberty Mutual Insurance Company's Policy Endorsement -- AS 2090 08 12 is hereby GRANTED.

2. Pursuant to Fla. Stat. §90.202 and §90.203, the Court hereby takes compulsory judicial notice of Liberty Mutual Insurance Company's Policy Endorsement -- AS 2090 08 12, which was approved by the Florida Office of Insurance Regulation on July 5, 2012.

20 Fla. L. Weekly Supp. 697a

Online Reference: FLWSUPP 2007RODR

Insurance -- Personal injury protection -- Coverage -- Emergency services -- Deductible -- Because insurer is mandated by statute to reserve $5,000 for emergency medical service providers, insurer should not have applied claim filed by medical provider within that classification to deductible -- However, emergency medical provider's bill would be paid only when deductible has been satisfied from claims of non-protected providers -- If no claims from non-protected providers are received, protected provider's bill would be applied to deductible

EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, LLP, as assignee of Adriel Rodriguez, Plaintiff, vs. USAA GENERAL INDEMNITY COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 2012-SC-705. February 27, 2013. Jerri Collins, Judge. Counsel: David B. Alexander, Bradford Cederberg, Orlando, for Plaintiff. David R. Hwalek, Tampa, for Defendant.

ORDER GRANTING PLAINTIFF'S MOTION FOR

PARTIAL SUMMARY JUDGMENT AND DENYING

DEFENDANT'S MOTION FOR FINAL JUDGMENT

THIS MATTER having come before the Honorable Court on Plaintiff's and Defendant's Competing Motion for Final Summary Judgment and this Honorable Court having heard arguments of counsel on the issue of whether providers of emergency services and care who submit their bill(s) in accordance with Florida Statutes 627.736(4)(c) are entitled to have their bill(s) paid regardless of the existence of a deductible, and the Court being otherwise fully advised in the premises, finds as follows:

FINDINGS OF FACTS

1. On September 17, 2011 Adriel Rodriguez was involved in a motor vehicle accident.

2. Rodriguez was insured by USAA General Indemnity Company (Defendant).

3. The insurance policy provided Personal Injury Protection (PIP) coverage in the amount of $10,000 and the policy had a $500 deductible.

4. As a result of the September 17, 2011 accident, Rodriguez sustained injuries and received medical treatment.

5. Defendant was notified of the accident on September 17, 2011.

6. On October 7, 2011, Defendant received a bill from Plaintiff for treatment provided to Rodriguez. Plaintiff submitted its bill within 30 days from the dale Defendant received notice of the accident. Plaintiff provided emergency services and care as defined by Florida Statute 395.002(9).

7. On October 8, 2011, Defendant received a bill from Florida Injury Deltona, Inc. (hereinafter "chiropractor") in the amount of $2,860.00.

8. On October 14, 201 1, Defendant processed Plaintiff's bill and the entire amount of the bill, $446, was applied to the insured's deductible.

9. On October 29, 2011, the Defendant processed the chiropractor bill of $2,072.80 and then applied $54.00 of the bill to the deductible.

10. The Plaintiff moved for Final Summary Judgment asking the Court to rule as a matter of law that Florida Statute 627.736(4)(c) mandates PIP insurers to reserve $5,000 in benefits for payment to physicians, such as Plaintiff, who provide emergency services and care, and preclude Defendant from applying the bill to the deductible when the bill was received within thirty (30) days from the notice of the accident.

CONCLUSION OF LAW AND RULING

The Legislature has not addressed the deductible and/or the application of the deductible to the protected class of emergency room providers in Florida Statute 627.736(4)(c). This issue has previously come before the court in Emergency Medical Associates of Florida, LLC, Assignee of Recy Cochran v. All State Indemnity Company, (Fla. 18th Judicial Circuit Seminole County Court case number 2011-SC-2162) [20 Fla. L. Weekly Supp. 186a] whereas this court found in favor of the defendant, insurer, and ruled that the emergency provider's bill must be applied to the deductible because the Legislature had not specifically excluded the protected class' bill from application to the insured deductible. Notwithstanding the earlier decision, this Court, upon further review, arguments of counsel and consideration finds that the plaintiffs bill should not have been applied to the deductible.

This court's decision hinges on the 30 day period in which the providers must submit their bill or lose the status as a protected provider. The Legislature carved out a protected class of providers, pursuant to 627.736(4)(c),1 and set forth a specific time period to submit their bills in order to take advantage of the statutory protection. The intent of the 627.736(4) (c) was to give priority to mandatory providers of emergency care and services. In reality if the protected providers are timely submitting their bills, they are running a greater risk of their bills being applied to the deductible But if they do not submit their bill within the 30 day period they will certainly lose their protection under the statute. If the intent of the statute was to prioritize these providers, it makes no sense that by following the statute they run a greater risk of their bill not being paid. This practice dilutes the intent of 627.736(4)(c). Their protection becomes a matter of luck and timing.

After careful consideration and a review of the Legislative amendments dating back to 2003, this court finds that it is reasonable to believe the legislature intended for the Plaintiff's bill to be paid out of the reserve and the non-protected provider's bills be applied to the deductible. However, it is only when the deductible is satisfied by non-protected providers that the Plaintiffs bill would be paid. If no other bills are received in a claim, the protected provider's bills would be the applied to the deductible.

Accordingly, the Court GRANTS Plaintiff's Motion for Partial Summary Judgment and DENIES Defendant's Motion for Final Summary Judgment.

__________________

1Upon receiving notice of an accident that is potentially covered by personal injury protection benefits, the insurer must reserve $5,000 of personal injury protection benefits for payment to physicians licensed under chapter 458 or chapter 459 or dentists licensed under chapter 466 who provide emergency services and care, as defined in s. 395.002(9), or who provide hospital inpatient care. The amount required to be held in reserve may be used only to pay claims from such physicians or dentists until 30 days after the date the insurer receives notice of the accident. After the 30 day period, any amount of the reserve for which the insurer has not received notice of a claim from a physician or dentist who provided emergency services and care or who provided hospital inpatient care may then be used by the insurer to pay other claims. The time periods specified in paragraph (b) for required payment of personal injury protection benefits shall be tolled for the period of time that an insurer is required by this paragraph to hold payment of a claim that is not from a physician or dentist who provided emergency services and care or who provided hospital inpatient care to the extent that the personal injury protection benefits not held in reserve are insufficient to pay the claim. This paragraph does not require an insurer to establish a claim reserve for insurance accounting purposes.

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