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:
- 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).
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,
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.
- 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
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
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