Category Archives: Fla. Stat. 627.736 (2012)

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)

Cost of Florida PIP Premiums Start to Drop Due to HB 119 Reforms

Almost two years after the Florida legislature passed House Bill 119, drivers may now start to notice a slight drop in this year’s automobile insurance rates resulting from reforms that helped lower Personal Injury Protection (PIP) premiums.

Although the primary goal of PIP, also known as no-fault insurance, was to reduce court cases and payment delays for injured drivers, the number of PIP claims and PIP payments escalated, even though the number of auto accidents did not increase over the past few years.

According to an article in the April 21 edition of Highlands Today, a local edition of the Tampa Tribune, PIP premiums are roughly 2 percent of Florida’s collected insurance premiums, but questionable claims make up nearly 50 percent of fraud referrals. The Division of Insurance Fraud received over 3,000 PIP fraud complaints in 2005-06, and obtained 225 convictions in 2007, the article added.

However, as we reported on this blog on March 31, a recent National Insurance Crime Bureau (NICB) report shows that tighter legislation, enhanced public awareness, and coordinated law enforcement is having a positive effect on PIP fraud in Florida.

In calculating cost reductions to the consumer, most insurers used rates from a Pinnacle study which projected legislative reforms would save Florida policyholders roughly 14-24 percent. Typically, 25 percent of a consumer’s total auto insurance premium cost comes from PIP.

A preliminary DOI analysis of the rates submitted by the top 20 automobile insurance companies writing PIP insurance, encompassing more than 75 percent of the Florida market, showed a 13.2 percent decrease. Therefore, a statewide reduction in PIP averaging 13.2 percent would translate to a 3-4 percent savings for the policyholder, the DOI figures.

DOI’s analysis was compiled to demonstrate the cumulative effect of House Bill 119 after the first required rate filing due in October 2012 and the second rate filing on Jan. 1, 2014, the Highlands Today story said.

However, rate changes are still pending for 2014, according to Amy Bogner, Deputy Director of Communications at the Florida Office of Insurance Regulation. “The anticipated cumulative effect of these two rate filings in the legislation was a 25 percent overall decrease in PIP rates,” Bogner explained.

Auto insurers who did not decrease PIP premiums by the cumulative 25 percent were required to demonstrate why the company’s savings should vary.

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Filed under Fla. Stat. 627.736 (2012), Insurance Fraud

Florida Supreme Court Refuses to Review PIP Case

The Florida Supreme Court has refused to consider a petition seeking to overturn a 2012 state law reducing PIP benefits.

In an attempt to curb fraud and lower insurance rates, HB 119—Personal Injury Protection (PIP) for Auto Insurance Fraud—requires people involved in motor vehicle crashes to seek treatment within 14 days, and allows up to $10,000 in benefits for emergency medical conditions and up to $2,500 for non-emergency conditions.

The law also prevents accident victims from using PIP coverage to pay for treatment by certain medical providers, and set benchmarks for insurers to lower rates on PIP coverage.

In 2013, Leon County Circuit Judge Terry Lewis ruled that the law illegally shut out some medical providers, namely acupuncturists and massage therapists.

As reported in an earlier blog post titled “Motion for Rehearing of Florida PIP Injunction is Denied,” the Florida First District Court of Appeal reversed the ruling in October, 2013, saying that the challengers to the law needed a “factual” plaintiff who had actually been harmed by the law rather than a hypothetical plaintiff, as named in the complaint. The Florida Supreme Court denied review of that decision in this week’s ruling.

An attorney representing medical providers who claim they were unfairly shut out by the law said he anticipates filing an amended case within 30 days using a named plaintiff alleged to have been harmed by the 2012 PIP reforms.

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

Roig Lawyers Partner, Jeff Tutan, Speaks at 2014 Medical Claims Defense Network on Topic of Use of Mobile X-rays

On April 16, 2014, Roig Lawyers Partner, and Board Certified Trial Attorney, Jeff Tutan presented at the Medical Claims Defense Network Conference in Orlando, Florida.  Jeff Tutan, head of the firm’s trial practice group, discussed his recent success at jury trial in a case involving a medical provider’s claim for reimbursement for “mobile x-ray” services.  During the round table presentation, Attorney Tutan discussed how he, partner Jessica Martin, and senior associate attorney Jenna Hackman, successfully defended such a case involving these increasingly prevalent medical services.

For more information, contact attorney Jeff Tutan at jtutan@roiglawyers.com.

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Filed under Fla. Stat. 627.736 (2008), Fla. Stat. 627.736 (2012), Licensing

3rd DCA Denies Millennium Petition for Writ of Certiorari in Legal Title Dispute

State Farm issued a policy to Hery Alvarez, whose mother, Josefa Alvarez, was in an accident while a passenger in her son’s car. Hery Alvarez and Josefa Alvarez lived in the same household, and Josefa Alvarez sought treatment at Millennium Diagnostic under her son’s PIP policy. She assigned her benefits to Millennium. She did not have vehicle insurance or her own PIP policy.

State Farm denied payment to Millennium. State Farm argued that the mother was the registered owner of a Ford Expedition and therefore should have had PIP through her own policy. She did not have insurance coverage on the Expedition, which was operable. She had leased the vehicle for her daughter, who had bad credit.

In the trial court, Millennium argued that Josefa Alvarez’s daughter, Ana Alvarez, was actually the beneficial owner of the Expedition. The trial court agreed and entered Summary Judgment, finding that the daughter was the beneficial owner of the Expedition. State Farm appealed the decision to the 11th Circuit Court of Appeals.

Florida §627.733, requires that every owner or registrant of a motor vehicle in FL is required to maintain motor vehicle insurance securing PIP benefits. An owner is a person who holds legal title to a motor vehicle. An owner of a registered, operable motor vehicle who fails to have PIP security in effect at the time of an accident shall have no immunity from tort liability, but shall be personally liable. Thus, if Josefa Alvarez is not the legal owner of the vehicle—beneficial ownership having passed to her daughter—she would not be required to have PIP coverage on the Expedition and could seek treatment under her son’s policy.

The trial court found that Ana Alvarez was the beneficial owner of the vehicle. Relying on State Farm v. Hartzog, 917 So. 2d 363, 364-65 (Fla. 1st DCA 2005), the court concluded that the name on the title is not the “litmus test” for determining ownership for insurance purposes. In Hartzog, Barbara Hartzog agreed to purchase a vehicle from Donnie Welch. Welch kept title in his name and maintained the insurance policy on the vehicle. When Hartzog was involved in an accident shortly after the purchase agreement was entered into, the 1st District Appellate Court concluded that Hartzog was the beneficial owner because Welch no longer owned the vehicle, pursuant to the purchase agreement, and Hartzog continued to make payments to Welch. The “overt acts” of Hartzog—having exclusive possession and control of the vehicle—were said to be key factors in determining beneficial ownership of a vehicle.

The appellate court in this case distinguished Hartzog. Here, no purchase agreement existed between Josefa Alvarez and her daughter, Ana Alvarez. In fact, there could not be because the lessor, not Josefa Alvarez, owned the Expedition, and Josefa did not have the right to transfer the title. Additionally, the court found that Josefa’s subjective intent to gift the vehicle to her daughter was insufficient to contradict her legal interest in the vehicle.

Thus concluding that Ana did not have beneficial ownership of the vehicle and that Josefa held legal title, the Appellate Court ordered that summary judgment be reversed, and the case remanded to the trial court. On December 5, 2013, the 3rd DCA denied a petition for writ of certiorari by Millennium.

Millennium Diagnostic v. State Farm, No. 3D13-0423 (3rd DCA 2013).
State Farm v. Millennium Diagnostic, No. 11-102 (Fla. 11th Cir. Ct. App. Div.).

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

Court Grants State Farm Motion in Terlep Chiropractic Case

Defendant State Farm’s insured, Mark Kundrat, was allegedly involved in a car accident on July 9, 2009.  Kundrat sought treatment for injuries sustained in the accident from Plaintiff Terlep Chiropractic. On November 22, 2010, Terlep filed a cause of action against State Farm, alleging failure to pay PIP benefits.  As an affirmative defense, State Farm argued that Terlep Chiropractic lacked standing to bring the cause of action.  Terlep argued that a “Financial Policy & Consent Form” signed by Kundrat as a condition of receiving treatment conveyed to Terlep the right to bring any and all causes of action against State Farm.

The document signed by Kundrat, and upon which Terlep relies, contains a paragraph entitled “Assignment of Benefits.”  In that paragraph, Kundrat assigned payment directly to Terlep Chiropractic and agreed that he is financially responsible for charges not covered by the assignment or which the insurer declines to pay.  The court found that this language unambiguously serves only to direct payment by the insurance company to the medical provider and that there is no language conveying any and all rights, including the right to bring any and all causes of action.  Because the language in the instant case does not convey a full assignment of any and all benefits and rights under the policy, the Plaintiff does not have standing to bring this cause of action against Defendant.

Terlep, in turn, argues that State Farm lacks standing to challenge the assignment of benefits because it lacks privity of contract.  The court points out, however, that State Farm is not challenging the contract between Terlep and Kundrat.  Rather, State Farm is raising the issue of the interpretation of the “assignment of benefits” part of the agreement.

Terlep further argues that it has standing to bring the cause of action based on equitable assignment.   The court concludes that the cases upon which Terlep relies for this argument should be distinguished because they involved situations in which the documents contained ambiguities and inconsistencies.  In this case, the document at issue is “clear and unambiguous,” and therefore equitable principles do not apply.

Plaintiff’s final argument is that it is the real party in interest and that entry of final judgment against it would deny it a remedy at law.  The document provides, however, that the insured is financially responsible for any payments not made to Plaintiff, and any cause of action is therefore between Kundrat and State Farm.

The court granted Defendant State Farm’s motion for full and final summary judgment.

The case is Terlep Chiropractic v. State Farm, Circuit Court, 6th Judicial Circuit in and for Pinellas County. Case No. 10-006194-SC. December 5, 2013.

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

11th Circuit Court Grants State Farm’s Request to Depose Imaging Center Owner

Petitioner State Farm sought to depose Respondent YH Imaging’s owner, Yamir Hernandez, as well as other individuals who allegedly performed portable x-rays in this case.  Respondent YH sought to have State Farm’s motion for discovery dismissed.

State Farm made their Motion for Discovery pursuant to Florida’s PIP Statute.  That statute provides, in  relevant part, that in “the event of a dispute regarding an insurer’s right to discovery of facts under this section, the insurer may petition a court of competent jurisdiction to enter an order permitting such discovery. The order may be made only on motion for good cause shown  . . . .”  §627.736(6)(c) Fla. Stat. (2013) (emphasis added).

In this case, the Court concluded that State Farm had established, through its motion and supporting affidavit, the necessary good cause to bring the discovery action.  The Court cited favorably two cases  holding that PIP insurers should be able to obtain informal discovery upon simple request and that court-ordered discovery is available upon a showing of good cause.  See Kaminester v. State Farm, 775 So. 2d 981 (Fla. 4th DCA 2000); State Farm v. Goldstein, 798 So. 2d 807 (Fla. 4th DCA 2001).  The Court also found persuasive orders granting similar actions for discovery entered by other judges in the 11th Judicial Circuit.

The Court granted petitioner’s Motion for Discovery and denied Respondent’s Motion to Dismiss.  State Farm was thereby granted leave to conduct the depositions at issue.

The case is State Farm Mutual Automobile Insurance Company, et al. v. YH Imaging, Inc., In Re OM, MM, et al., Circuit Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 11 28263 CA 05 (24).  December, 3, 2013. Click on the link to read the court order.

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

Motion for Rehearing of Florida PIP Injunction is Denied

On November 26, 2013, the First District Court of Appeals dismissed a motion for rehearing on its October ruling to reverse an injunction placed on reforms to Florida’s PIP system. The reforms, contained within HB 119 and signed into law by Gov. Rick Scott in 2012, ban PIP payments to acupuncturists and massage therapists. The reforms also require that claimants seek treatment from a physician or hospital within 14 days of an accident.

A group of acupuncturists, massage therapists, and chiropractors filed for an injunction, which was ultimately granted. The Court of Appeals ruled in October that the injunction should be reversed. It upheld this decision by denying a motion for rehearing on its ruling.

We wrote in September about reservations expressed by a three-judge panel from the 1st District Court of Appeals regarding the challenge made by acupuncturists, massage therapists and chiropractors to key parts of Florida’s 2012 landmark reform of the personal-injury protection (PIP) auto insurance law, in a blog post titled “Judges Question Challenges Brought to Florida’s No Fault Insurance Law.”

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

Six Arrested in Fort Myers and Port Charlotte PIP Fraud Ring

Fort Myers and Port Charlotte Accident Clinics Busted for Fraud

A tip from insurance company investigators and a cooperating witness helped bring down a PIP insurance fraud ring that was operating out of Evans Rehab Center in Fort Myers and Charlotte Wellness and Rehab in Port Charlotte.

According to Lt. Mark Fritz of the Florida Department of Financial Service’s Fraud Division, Nationwide Insurance lost more than $33,000 as a result of the two clinics’ fraudulent practices.

Insurance company investigators, who were suspicious that Evans Rehab was allegedly billing for services that were not provided as well as recruiting patients, alerted authorities who worked with a cooperating witness.

“We had a traffic accident report with their names on it and that’s what got us in the doors,” Lt. Fritz explained in a WINK news update.

That witness was apparently paid to sign documents, but did not get treatment even though the insurance company was still billed for it. That led investigators to Charlotte Wellness and Rehab where illegal insurance billing was also found, in addition to the facility operating without the proper license.

According to Today – Ft. Myers, the following suspects were arrested as a result:

  • Receptionist Gloria Feliz, 31, on seven counts of insurance fraud and one count of fraud
  • Massage therapist Andres Bravo, 52, on a charge of grand theft
  • Facilitator Joe Gevans, 51, on criminal solicitation and patient brokering
  • Clinic owner Gerard Jean Stephen Valere, 51, for patient brokering and attempt to solicit, conspire
  • Chiropractor Ronald Woodley, 63, for filing a false health clinic application
  • Jordany Estimond, 44, on charges of patient brokering and attempt to solicit, conspire

Woodley, Gevans and Valere were booked into the Charlotte County jail, while Feliz, Estimond and Bravo were detained in Lee County. If convicted, each faces up to five years in prison.

Authorities are looking for additional conspirators in this case.

The Department of Financial Services will reward tipsters up to $25,000 for information that directly leads to an arrest and conviction in an insurance fraud scheme. The department has already awarded almost $342,000 to more than 50 citizens as part of its Anti-Fraud Reward Program.

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Filed under Fla. Stat. 627.736 (2012), Insurance Fraud