Category Archives: Case Law

Allstate to Recover Almost $1 Million in PIP Case against Dr. Sara Vizcay

In a case brought by Allstate in the Florida Middle District, the court ruled on August 1st that the Defendant’s Motion for Declaration of Mistrial was denied, the Plaintiff’s Motion for Declaratory Judgment was granted in part, and the final judgment was ordered.

Dr. Sara C. Vizcay and the seven medical clinics listed below were the Defendants in the case.

  • Best Care Medical Center, Inc.
  • Caleb Health Care, Inc.
  • Florida Rehabilitation Practice, Inc.
  • Global Diagnostic Center, Inc.
  • Personal Medical Center, Inc.
  • P.V.C. Medical Center, Inc.
  • Regional Enterprises for Health Corporation

Fraudulent billing practices and failure to comply with the licensing requirements of the Florida Health Care Clinic Act (HCCA) formed the basis of Plaintiff allegations. In a jury trial earlier this year, the jury found that each Defendant misrepresented material facts.

The court noted that the “jury unanimously found Plaintiffs proved, by a preponderance of evidence, that Dr. Vizcay failed to substantially comply with her statutory medical director duties to systematically review bills … and to ensure those bills were not fraudulent or unlawful.”

The total amount to be recovered by Allstate is $942,883.41, and Plaintiff is not obligated to pay any unpaid amounts.

The case is Allstate v. Sara C. Vizcay, M.D. et al., U.S. District Court for the Middle District of Florida, Case No. 8:11-CV-804-EAK-EAJ. Click on the link to read the August 1, 2014 Order of Judgment.

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Filed under Case Law, Insurance Fraud

Eleventh Circuit Dismisses PIP Case Involving EMC and Massage Therapy

A class action suit filed by plaintiff Accumed Chiropractic against Progressive Select Insurance was dismissed on July 31, 2014 by Circuit Court Judge Antonio Arzola. Judge Arzola concluded that the action was inappropriate for class action treatment.

The suit was brought on behalf of plaintiff itself and two putative classes. The first class was to be anyone who was denied payment by Progressive under PIP or MedPay insurance coverage where Progressive’s denial was based on an assertion that an Emergency Medical Condition for the insured was not established.

The second class was to be defined as anyone whose PIP or MedPay claim was denied because the health care service was for massage therapy or acupuncture. Plaintiff sought both declaratory relief and damages for breach of contract.

Plaintiff stipulated at the hearing that it did not have standing to sue for MedPay benefits. As for the PIP claims, Judge Arzola found that the “necessary and individualized questions associated with the underlying PIP claims of the class will predominate in this Action.” As a matter of law, therefore, plaintiff’s case could not proceed as a class action, and the complaint was dismissed without prejudice.

The case is Accumed Chiropractic & Wellness Center, Inc. v. Progressive Select Insurance Company, Case No. 13-CA-029396 (Fla. 11th Cir. Ct., July 31, 2014). Click on the link to view the court order.

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Filed under Case Law

Defendant’s Motion to Dismiss Granted with Prejudice in PIP Benefits Case Involving Challenge to “Emergency Medical Condition” (EMC) Provision

In a second ruling within one week involving Florida’s amended PIP law, the U.S. District Court for the Southern District of Florida dismissed a case challenging reimbursement under the amended statute’s “emergency medical condition” or “EMC” provision. See our earlier post titled Court Grants Defendant’s Motion to Dismiss in Robbins v. Garrison P & C.

Sendy Enivert sued her auto insurance company, Progressive Select, alleging breach of contract for failing to pay her PIP benefits to a limit of $10,000. Enivert’s claim involved the newly added provision to Florida’s PIP law which limits PIP benefits depending on whether a claimant has suffered an emergency medical condition.

Plaintiff Enivert interpreted this language to mean that an insured is limited to $2,500 only if a medical provider determines that there is no emergency medical condition. She argued that because, in her case, no medical provider ever made such a determination, she was entitled to the full $10,000. In other words, because no medical provider determined that she did not have an emergency medical condition, she was entitled to full benefits.

Defendant Progressive read the statute to mean the opposite, i.e., that a medical provider must affirmatively determine that an emergency medical condition does exist in order for the insured to be eligible for reimbursement of the full amount.

The court agreed with Progressive, concluding that the PIP statute clearly indicates that a determination that a claimant has suffered an emergency medical condition is required in order to receive benefits in excess of the $2,500 limit. Since a medical provider did not determine that Enivert had an emergency medical condition, she was not entitled to the full $10,000 in benefits.

The court also looked to the legislative intent behind the PIP statute. It concluded that the clear legislative intent was to decrease PIP fraud by placing more stringent requirements in order to receive the maximum amount of benefits.

Based on the above, the court granted Progressive’s motion to dismiss Enivert’s case.

The case is Sendy Enivert v. Progressive Select Insurance Co., Civil Action No. 14-CV-80279-Ryskamp/Hopkins (S.D. Fla. July 23, 2014). Click on the link to read the court ruling.

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Filed under Case Law, Fla. Stat. 627.736 (2012)

Court Grants Defendant’s Motion to Dismiss in Robbins v. Garrison P & C

On July 18, the U.S. District Court for the Southern District of Florida dismissed a case in which the plaintiff challenged reimbursement under the amended statute’s “emergency medical condition” (“EMC”) provision.

Glenaan Robbins sued her auto insurer, Garrison P&C Insurance Co., alleging that Garrison violated the 2013 provision of Florida’s PIP law that limits PIP benefits depending on a determination of whether or not the claimant suffered an emergency medical condition.

Robbins sustained injuries in an April 2013 car accident. She was treated for her injuries and alleged that ultimately “no determination was made that she did not have an emergency medical condition.” When Robbins submitted her claim to her insurer Garrison, Garrison limited her reimbursement to $2,500.

FL PIP law requires that an insurance company must reimburse its injured insured up to $10,000 if certain medical providers determine that the injured person had an emergency medical condition. Reimbursement is limited to $2,500 if a provider determines that the injured person did not have an emergency medical condition.

In this case, no determination was made either way that an emergency medical condition did or did not exist. Plaintiff Robbins argued that where there has been no such determination, insurance companies must reimburse medical expenses up to $10,000. In other words, unless a determination of no emergency medical condition is made, the plaintiff is entitled to the higher amount.

Reviewing the language of the statute and legislative intent, however, the court concluded that Robbins’ argument had no merit. Rather, where there has been no determination of an emergency medical condition made, PIP medical benefits are not to exceed $2,500. Thus, contrary to Robbins’ argument, the conclusion of the court was that unless there is a determination of an emergency condition, the reimbursement is limited to $2,500.

The court therefore held that Robbins had failed to allege a statutory claim and her case was dismissed.

The case is Glenaan Robbins v. Garrison Property & Casualty Insurance Co., Civil Action No. 13-81259-Civ-Scola (S.D. Fla. July 18, 2014). Click on the link to read the court ruling.

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Filed under Case Law, Fla. Stat. 627.736 (2012)

State Farm Granted Summary Judgment in Lake Worth Chiropractic PIP Benefits Case

On July 14, 2014, the 15th Judicial Circuit for Palm Beach County affirmed a lower court decision granting summary judgment to State Farm in a claim for PIP benefits brought by Lake Worth Emergency Chiropractic Center.

In the underlying case, Judge Bosso-Pardo granted defendant’s Motion for Final Summary Judgment, entering final judgment for the defendant, State Farm, upon finding that the pre-suit demand letter, required by Florida Statute 627.736(10) (2010), was insufficient in that it demanded payment for services that were never billed to State Farm.

Judge Bosso-Pardo found that the Plaintiff’s “withdrawing” the unbilled service after suit had commenced was insufficient to cure the defect and that the demand letter requirements under Florida Statute 627.736(10) must be strictly construed and adhered to by those seeking to initiate litigation against a Florida PIP insurer.

The Circuit Court affirmed this decision, concluding that section 627.736(10) requires strict compliance and that, in this case, the demand letter did not strictly comply with the PIP statute requirements. As such, Lake Worth Emergency Chiropractic Center failed to satisfy the condition precedent to filing its law suit, and the trial court was correct in awarding final summary judgment in favor of State Farm.

The case is Lake Worth Emergency Chiropractic Center v. State Farm, in the Fifteenth Judicial Court for Palm Beach County, Case No. 502012AP000034XXXXMB. Click on the link to read the court opinion.

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Filed under Case Law, Fla. Stat. 627.736 (2008)

4th District Court of Appeal Denies Rehearing in PIP Benefit Dispute

The Fourth District Court of Appeal has denied motions for rehearing by appellants in a PIP case decided in the insurer’s favor. The case was the consolidation of two separate PIP cases.

Insureds in both cases sought treatment for injuries sustained in separate accidents and assigned their PIP benefits to their treatment providers. One of the insurers, State Farm, reduced the amount paid to Northwood Sports Medicine, and Northwoods subsequently sued. Prior to that filing, the insured’s PIP benefits were exhausted. State Farm moved for summary judgment; Northwoods amended its complaint to allege that State Farm reduced payments in bad faith. The trial court granted the motion for summary judgment on the sole ground of exhaustion of benefits.

Likewise, in the second case, the insured assigned his benefits to Wellness Associates of Florida. USAA Insurance Co. reduced the payments to Wellness, and Wellness filed a complaint for damages. At the time the suit was filed, less than $14 in unpaid PIP benefits remained and, while the lawsuit was pending, PIP benefits were exhausted. USAA moved for summary judgment, Wellness amended its complaint to allege bad faith, and the trial court entered summary judgment based upon exhaustion of benefits.

For jurisdictional reasons, the appellate court transferred the Northwoods case to the circuit court. The question that the appellate court answered in the affirmative in the Wellness case is whether post-suit exhaustion of benefits absolves the insurer from responsibility to pay an otherwise valid claim where the exhaustion occurred after the insurer: (1) paid an amount that the provider claims is less than required by the contract; (2) received a pre-suit demand letter notifying the insurer of the medical provider’s dispute; and (3) was served with the filed complaint.

In its rationale, the court extended its decision in Simon v. Progressive, rejecting the “reserve or hold” theory by which an insurer is to put money in reserve if it denies or reduces a claim until that claim is resolved. The court concluded that “where the reasonableness of the provider’s claim is in dispute, post-suit exhaustion of benefits extinguishes the provider’s right to further payments, as long as exhaustion is prior to the establishment of the amount to which the medical provider is entitled to under PIP.” The court concluded that post-suit exhaustion of benefits—as was the case in Wellness—should be treated no differently than pre-suit exhaustion of benefits, as long as the amount of PIP benefits to which the provider is entitled has not been established. The court therefore affirmed the final judgment of the trial court in Wellness.

The case in the District Court of Appeal of The State of Florida Fourth District, January Term 2014, is Northwoods Sports Medicine and Physical Rehabilitation, Inc., (A/A/O Suzanne Cabrera), and Wellness Associates of Florida, Inc., (A/A/O Daniel North), Appellants, v. State Farm Mutual Automobile Insurance Company and USAA Casualty Insurance Company, Appellees, Nos. 4d11-1556 and 4d11-3796, [March 5, 2014]. Click on the link to read the June 4, 2014 ruling in the case.

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Filed under Case Law, Fla. Stat. 627.736 (2008)

Attorney Fee Conflict Settled in Advanced Chiropractic v. UAIC

On May 29, 2014, the Florida Supreme Court issued a decision settling a conflict over the timeliness of filing for attorney’s fees.

The case originated in Broward County with an action filed by Advanced Chiropractic against United Automobile Insurance Co. (“UAIC”) for PIP benefits. During the course of the action, the attorney for Advanced moved offices and filed a change of address with the Clerk of Court. Two months later, Advanced and UAIC entered into a settlement agreement in which UAIC agreed to pay Advanced’s attorney’s fees. The trial court judge subsequently entered an order of dismissal in the case.

Advanced’s attorney never received a copy of the dismissal because the Clerk of Court failed to update its records concerning the address change. Once he learned of the dismissal, months later, counsel for Advanced filed a motion for attorney’s fees. Because the motion was filed past the mandatory 30-day deadline, the attorney moved to vacate the order of dismissal based on excusable neglect due to the court’s failure to update its records.

In a hearing on the motion to vacate the dismissal, the attorney for Advanced and an employee of the Clerk of Court both filed unsworn statements. The county court found that Advanced had established excusable neglect, vacated the order of dismissal, and allowed Advanced’s attorney to file a motion for attorney’s fees.

UAIC appealed the decision to the circuit court, contending that counsel for Advanced had not established excusable neglect. The circuit court held that, because the statements from the attorney and the Court’s employee were unsworn, there was not sufficient evidence to support the finding of excusable neglect. The circuit court therefore reinstated the order of dismissal.

Advanced appealed to the Fourth District, asserting that the circuit court had failed to apply the correct legal standard. The Fourth District concluded that Advanced had been denied due process and therefore quashed the decision of the circuit court.

Advanced then filed a motion for attorney’s fees. UAIC opposed the motion on the basis that it was untimely pursuant to the FL Rules of Appellate Procedure. The District Court dismissed UAIC’s argument based on the Rules of Appellate Procedure, but nonetheless denied the motion for attorney’s fees on the basis of the FL Supreme Court’s 1991 holding in Stockman v. Downs, which requires parties to plead entitlement to attorney’s fees.

The Fourth District held that, pursuant to the Stockman decision, the request for attorney’s fees must be made in the pleadings which, in this case, would be the petition, the response, or the reply. Because Advanced did not request fees in the petition or reply, the district court held that the motion was untimely. The state Supreme Court then agreed to review the case to consider whether the Fourth District misapplied the Stockman decision.

In the Stockman case, the Supreme Court addressed whether a prevailing party could raise entitlement to attorney’s fees for the first time by motion after trial. The Court held that a claim for attorney’s fees based upon a contract or statute is waived unless it is made in the pleadings. The Court explained that the fundamental concern is that the parties have notice of the claim as it may affect the decisions of the parties with respect to the case.

In distinguishing Stockman from this case, the Court noted that Stockman involved a request at the trial level and that the primary concern—lack of notice—is not implicated in the case at hand. Since Advanced requested attorney’s fees in both the county and circuit courts,   UAIC could not contend unfair surprise when Advanced again claimed entitlement to attorney’s fees. Consequently, the Court quashed the decision in the court below and remanded to the district court for a determination of the amount of attorney’s fees to which Advanced is entitled.

The case is Advanced Chiropractic And Rehabilitation Center, Corporation vs. United Automobile Insurance Company, Supreme Court of Florida, Case No. SC13-153, May 29, 2014.

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Filed under Case Law