20 Fla. L. Weekly Supp. 521a
Online Reference: FLWSUPP 2005VANA
Attorney's fees -- Justiciable issues -- Insurance -- Where medical
provider dismissed suit two months after it was filed and prior to any
discovery being conducted, record was not sufficiently developed to support
determination that suit was frivolous -- Insurer's motion for attorney's
fees is denied
EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, LLP, as assignee of Maria Vanatta,
Plaintiff, v. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.
County Court, 9th Judicial Circuit in and for Orange County. Case No.
2012-SC-002126. December 27, 2012. Deborah B. Ansbro, Judge. Counsel:
Mark A. Cederberg, Bradford Cederberg P.A., Orlando, for Plaintiff. David
Hwalek, Tampa, for Defendant.
ORDER DENYING DEFENDANT'S ENTITLEMENT
TO FEES PURSUANT TO FLA. STAT. 57.105
THIS MATTER having come before this Honorable Court on Defendant's
Motion for Attorney's Fee's pursuant to Fla. Stat. 57.105 and
this Honorable Court having heard arguments of counsel and being otherwise
fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED that:
The Defendant's Motion is DENIED. The Plaintiff dismissed their claim
for breach of contract approximately two months after it was filed and
prior to any discovery being conducted. The court finds the situation
factually analogous to, and is persuaded by, the reasoning in Murphy vs.
WISU Properties, LTD., 895 So.2d. 1088 (Fla. 3d DCA 2004) [29 Fla. L.
Weekly D2444a]. In Murphy, the Third District held it was an abuse of
discretion to award fees pursuant to a 57.105 following the court's
dismissal of the Plaintiff's complaint with leave to amend. Here,
as in Murphy, the record before the court was not sufficiently developed
to support a determination that the suit was frivolous. See also Xerox
Corporation vs. Sharifi 502 So.2d 1003 (Fla 5th DCA 1987) and Vasquez
vs. Provincial South, Inc. d/b/a P.S.I. Roofing 795 So2d 216 (Fla 4th
DCA 2001) [26 Fla. L. Weekly D2329a].
20 Fla. L. Weekly Supp. 77a
Online Reference: FLWSUPP 2001MCCL
Insurance -- Personal injury protection -- Deductible -- PIP statute and
policy require that deductible be subtracted from total billing amount
before statutory or contractual reductions are applied
NEW SMYRNA IMAGING, LLC., As assignee of Megan McClanahan, Plaintiff, vs.
GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court,
18th Judicial Circuit in and for Seminole County. Case No. 2011-SC-1593.
October 10, 2012. Honorable Jerri L. Collins, Judge. Counsel: Mark A.
Cederberg, Bradford Cederberg P.A., Orlando, for Plaintiff. David Hwalek,
Herssein Law Group, Tampa, for Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT AND DENYING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
THIS MATTER came before this Honorable Court on Plaintiff's and Defendant's
competing Motions for Final Summary Judgment and this Honorable Court
having heard arguments of counsel, the Court being otherwise fully advised
in the premises, finds as follows:
This is a claim for PIP benefits arising out of a motor vehicle accident
that happened on December 25, 2010. The Plaintiff in this matter is New
Smyrna Imaging, LLC, as assignee of Megan McClanahan. The assignor, Megan
McClanahan, took out a contract of insurance with Defendant, Garrison
Property and Casualty Insurance Company. The contract included a $500.00
deductible for PIP benefits. On February 28, 2011, the Defendant, Garrison
received a bill from the Plaintiff for services rendered to the assignor
on February 15, 2011 totaling $1,650.00. Defendant reduced the bill from
$1,066.28 (200% of the Medicare Part B Schedule) and then subtracted the
$500.00 deductible from $1,066.28 leaving a balance of $566.28. The Defendant
then multiplied the balance of $566.28 by 80% and issued a payment to
Plaintiff in the amount of $453.02.
The Plaintiff brought suit alleging misapplication of the deductible stating
that Florida Statute 627.736 and 627.739 requires the $500.00 deductible
be applied to 100% of the medical bill before the Defendant applied any
percentage limitations to the outstanding bill. The Defendant's position
is that they correctly applied the deductible to the Plaintiff's bill
pursuant to the terms of the insurance contract and Florida Statutes 627.736
and 627.739(2). Both parties are seeking Final Summary Judgment on this
issue alleging as a matter of law that their respective calculations are
the legally proper formula to determine amounts due for medical services.
Conclusions of Law
The main issue before this Court is whether the insured's deductible
amount should be applied to the initial charges billed by the Plaintiff
for medical services rendered to the insured pursuant to her Personal
Injury Protection (hereinafter "PIP") benefits under sections
627.736 and 627.739 of the Florida Statutes or whether the deductible
should be applied after percentage limitations have been imposed.
This case presents an issue of statutory interpretation. It is well-settled
that in attempting to discern legislative intent, the Courts first look
to the actual language in the statute. Krause v. Textron Financial Corp.,
59 So. 1085 (Fla. 2011) [36 Fla. L. Weekly S54a]; Saleeby v. Rock Elson
Construction, Inc. 3 So.3d 1078 (Fla. 2009) [34 Fla. L. Weekly S106a].
Additionally, when the statute is clear and unambiguous, there is no occasion
for resorting to the rules of statutory interpretation and construction;
the statute must be given its plain and obvious meaning. Id.
Florida Statute 627.739(2) states: The deductible amount must be applied
to 100 percent of the expenses and losses described in 627.736.
Prior to the 2003 amendment of the above statute, the deductible was applied
to "benefits otherwise due". The Court in International Bankers
Insurance Company v. Arnone, et al. 552 So.2d 908 (Fla. 1989) found that
the statutory language "benefits otherwise due" required the
80% reduction under the policy before the deductible was applied.
The statute changed to delete the words "benefits otherwise due"
and instead reads that the deductible should be applied to 100 percent
of the expenses and losses as defined by section 627.739. Section 627.736
no longer has the qualifying phase "otherwise due". The defense
argues that the words "as defined in s.627.736" is a similar
qualifying phase that means the percentage reduction is appropriate.
The very term "100 percent" means to encompass the entire body.
It is illogical to think that the legislature intended to include the
word "100%" just to redirect the parties to reduce it to 80%
in the same sentence. The words "described in s.627.736" modify
the phrase "expenses and losses" and do not modify "100
percent". The Court finds that the plain meaning of this statute
is that the deductible must first be applied to the total bill and then
the insurance company is entitled to adjust the payment accordingly. Furthermore,
the parties' contract states that the deductible shall be applied
to the "total amount of medical benefits, work loss and replacement
services expenses, before the application of any percentage (emphasis
added) limitation incurred by or on behalf of each person to whom the
deductible applies". This language is in accord with the idea that
the deductible must be applied before any reduction whether contractual
or statutory is applied.
It was raised by way of argument that the affidavit of Traci Postell is
based solely on "the best of her knowledge and belief" and is
thus legally insufficient to meet the requirements of Rule 1.150(e). The
body of the affidavit indicates that the affiant has personal knowledge
of the facts and circumstances surrounding the services because she is
the owner of Plaintiff's company and the custodian of business records.
She states she is familiar with the customary charges in the community
for the services rendered. The Court finds that the affiant sets forth
sufficient facts in the body of the affidavit to show that she is competent
to testify to the matter stated therein.
Accordingly, the Court grants Plaintiff's Motion for Summary Judgment
as it pertains to the application of the deductible and the reasonableness
to the Plaintiff's charges. Based upon Traci Postell affidavit and
there being no evidence in opposition, the Court finds that there is no
genuine issue of material fact as to the reasonableness of the charges
and, as such, it is hereby
ORDERED AND ADJUDGED that the Plaintiff's Motion for Summary Judgment
is GRANTED and Defendant's Motion for Summary Judgment is DENIED.
* * *
19 Fla. L. Weekly Supp. 948a
Online Reference: FLWSUPP 1911SAIN
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
EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, LLP, as assignee of Oriol Saintilma,
Plaintiff, v. DIRECT GENERAL INSURANCE COMPANY, Defendant. County Court,
18th Judicial Circuit in and for Seminole County. Case No. 2011-SC-002170.
July 16, 2012. Donald L. Marblestone, Judge. Counsel: Robert D. Bartles,
Bradford Cederberg, P.A., Orlando, for Plaintiff. Neil Andrews, Adams
& Diaco, P.A., Orlando, 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 on Plaintiff's
and Defendant's Competing Motions for Partial 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 Statute § 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:
1. The issue before the Court is a matter of first impression.
2. The parties stipulated to the facts and the Court hereby adopts the facts.
FINDINGS OF FACT
3. On May 24, 2011, Oriol Saintilma (Saintilma) was involved in a motor
4. On May 24, 2011, Saintilma was insured by Defendant under an automobile
5. The insurance policy provided Personal Injury Protection (PIP) coverage
in the amount of $10,000 and the policy had a $1,000 deductible. The policy
did not include medical payments coverage.
6. As a result of the May 24, 2011 motor vehicle accident, Saintilma sustained
injuries and received medical treatment.
7. On May 25, 2011, Saintilma presented to Orlando Health wherein he received
emergency services and care as defined by Florida Statute § 395.002(9)
from Plaintiff, Emergency Physicians of Central Florida, LLP, the Emergency
Department Physicians who serve the Orlando Health System.
8. Plaintiff charged $287 for the emergency services and care provided
to Saintilma on May 25, 2011.
9. Defendant was notified of the motor vehicle accident on May 25, 2011.
10. On June 13, 2011, Defendant received Plaintiff's bill for date
of service May 25, 2011, which was within thirty (30) days of the date
Defendant received notice of the motor vehicle accident.
11. Defendant allowed the Plaintiff's charge of $287 in full. However,
Defendant applied the Plaintiff's charge to the $1,000 deductible.
12. Plaintiff moved for summary judgment alleging that, amongst other things,
Florida Statute § 627.736(4)(c) mandated that PIP insurers reserve
$5,000 in benefits for payment to physicians, such as Plaintiff who provide
emergency services and care, thereby precluding Defendant from applying
the bill to the deductible when the bill was received within thirty (30)
days from the notice of accident.
CONCLUSIONS OF LAW AND RULING
13. It is well settled that in attempting to discern legislative intent,
courts first look to the actual language used in the statute. Saleeby
v. Rocky Elson Construction, Inc., 3 So. 3d 1078 (Fla. 2009) [34 Fla.
L. Weekly S106a]; Vreuls v. Progressive Employer Services, 881 So. 2d
688 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D1990b]. Additionally, when
a statute is clear and unambiguous, the plain and ordinary meaning must
control, unless this leads to an unreasonable result or a result clearly
contrary to legislative intent. Id.
14. On January 1, 2008, the Legislature revived the PIP statute which created
for the first time a mandatory set aside of $5,000 for payment of bills
submitted by a special class of providers. Florida Statute § 627.736(4)(c)
states in relevant part:
Upon 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
15. The Court agrees with Plaintiff and finds that the language of Florida
Statute § 627.736(4)(c) is clear and unambiguous. PIP insurers must
reserve $5,000 of PIP benefits for payment to physicians licensed under
the stated chapters of Florida Statute § 627.736 (4)(c) and the $5,000
may only be used to pay claims for such physicians until 30 days after
the date the insurer receives notice of an accident.
16. The Legislature did not address the deductible and/or the application
of a deductible to the selected group of emergency medical providers in
Florida Statute § 627.736(4)(c).
17. Based on the plain language of the statute, Plaintiff satisfied all
of the requirements set forth in Florida Statute § 627.736(4)(c)
and therefore Defendant was obligated to reserve benefits for payment
to Plaintiff and should not have applied the bill to the deductible.
18. Therefore the Plaintiff's bill should have been paid from the mandated
19. Accordingly, the Court grants Plaintiff's Motion for Partial Summary
Judgment and Denies Defendant's Motion for Partial Summary Judgment.
20. Following the summary judgment hearing, the parties stipulated that
in this case the Plaintiff's services were reasonable, related and
medically necessary and that the Plaintiff's charge was reasonable.
21. Based on the parties stipulation, there are no remaining issues of
fact in dispute and Plaintiff is entitled to Final Summary Judgment as
a matter of law.
22. Final Judgment is hereby granted in favor of Plaintiff, Emergency Physicians
of Central Florida, LLP a/a/o Oriol Saintilma, wherein Plaintiff shall
recover from Defendant, Direct General Insurance Company, the sum of $229.60
plus 6% interest in the amount of $15.13 for a total sum of $244.73 for
which sum let execution. Post judgment interest of 4.75% per annum shall
be due on this judgment pursuant to Fla. Stat. § 55.03.
23. The Court finds that Plaintiff is entitled to reasonable attorney's
fees and costs. The Court reserves jurisdiction to determine the amount
of Plaintiff's attorney's fees and costs pursuant to Fla. Stat.
§§ 627.736, 627.428 and 57.041.
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