August 7, 2009
FLORIDA LAW WEEKLY - DOCUMENT
I was recently researching and came across the Waterford Lakes Wellness v. Progressive American case involving the application of the Medicare Part B fee schedules found in the "new" Florida Motor Vehicle No-Fault Law to a policy and date of loss that occurred in 2007.
Specifically, this case involves a policy issued in July 2007, and a date of loss in December 2007. However, all dates of treatment were in 2008. The Orange County Court reviewed the "incorporation" language found in the "new" Florida Motor Vehicle No-Fault Law as well as the fact that the change in the law did not bring about a "substantive" change in the law. This is because the value of the policy, the benefits available under the policy, and the premium did not change. The only thing that changed is the cap or limitation on the "reasonable" charge from the provider.
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August 6, 2009
I was in Miami before Judge Hague arguing for the applicability of the “new” Florida No-Fault Law, and fee schedules to a policy issued in November of 2007 with an expiration date in March 2008. The DOL was March with DOS from April to June. I am pleased to say that Judge Andrew Hague reversed his prior ruling on the issue, and granted the defendant’s motion for summary judgment, and applied the fee schedule. He requested that I prepare a specialized and detailed order granting the motion. We are working on the order, and final judgment that I hope to overnight to Judge Hague tonight! Note this is like our other case where the insurer wrote to the insured and advised them that the “old” No-Fault law was going to sunset, and that at their election they would be covered by “non-statutory PIP” underwritten on a new endorsement to the policy. When the “new” No-Fault law passed, they wrote to the insured (as required by the new PIP law) and told them that statutory PIP would be added back into their policy effective 1.1.08 and that the “new” would apply. Based upon this were we able to argue that the insured had to know that the new law had been passed, and would become effective 1.1.08, as would the insured’s assignee, the plaintiff. Judge Hague found this to be very significant. We argued the language of the PIP statute that the new No-Fault law was incorporated into every policy in effect on 1.1.08, and every policy was endorsed by statute to include the new PIP law. We also pointed out that the policy stated that bills would be paid in accordance with the Florida No-Fault Law, as amended. Along these lines we argued that they Insurance Code is incorporated into every policy as a matter of law, and since the new law was already in effect with an effect date of 1.1.08 it should be applied. We also anticipated the plaintiff argument regarding impairment of contract (which was not pled, nor was the AG put on notice).
The plaintiff’s attorney argued everything under the sun. They argued that the policy states the insurer will be 80% of reasonable charges without reference to the fee schedule, that the law in effect when the policy was written (incepted) applies, that they fee schedules are voluntary, and finally that even if the fee schedules apply and were correctly paid by the insurer, the court would still have to conduct a trial on RRN Along those line I brought not only the statute, but also the limited legislative history that can be found on the Florida Legislature’s website.
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July 13, 2009
EUO CASE FROM THE 2D DCA - Document
Attached is an interesting EUO case from the 2d DCA. The issues presented are multifaceted, but imbedded in the decision is the issue of whether or not an insured who has exhausted PIP benefits but may who still seek UM/UIM benefits must still sit for an EUO, even though they have not sought or are not seeking UM/UIM benefits. There is also the issue of the insurer writing to the insured requesting information, cooperation and reserving rights. In sum, the court held the insured must sit for the EUO under the foregoing facts and circumstances.
This case highlights a fact scenario we often face when benefits are exhausted. Claimants take the position that once benefits are exhausted, there is no further duty to attend an EUO, IME, etc. Here, however, it should be noted that the insurer still had a UM/UIM exposure. That may make a difference in the end.
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June 16, 2009
The 11th Circuit Sitting in its Appellate Capacity States: The Insurer's Representative Must be Deposed Where they Do Business or Reside! - Document
It is great to see that the 11th Circuit reversed Judge Pando who regularly requires the defendant insurer to travel from wherever they do business to be deposed wherever the plaintiff sets them. The plaintiff's Bar has used this as leverage to settle cases where the insurer would have to travel from Wisconsin and pay $1000 for airfare to defend a $500 claim.
The plaintiff's argument always references the Kaufman v. Kaufman case. The language in that case suggests that if the defendant seeks affirmative relief, then they need to get in their buggy and travel to wherever the plaintiff set their deposition. However, as this decision suggests, affirmative relief is a counter-claim or a third-party claim, not an affirmative defense. That is, affirmative relief is when a party invokes the jurisdiction of the court, not just defends itself with denials and affirmative defenses. Here is the key language from the opinion:
Having clarified that affirmative defenses differ from affirmative relief, we next consider how a defendant's choice to seek affirmative relief influences the location for a deposition requested by the plaintiff. A defendant “will not be required to travel a great distance and incur substantial expenses to be deposed by the plaintiff, unless the defendant is seeking affirmative relief.” Fortune Ins. Co. v. Santelli, 621 So. 2d 546, 547 (Fla. 3d DCA 1993) (emphasis added) (citing Kaufman v. Kaufman, 63 So. 2d 196 (Fla. 1952). In the instant matter, AMEX filed an answer with six (6) affirmative defenses. Its answer did not include a counterclaim, cross-claim, or third-party complaint; therefore, AMEX did not seek affirmative relief.
Here is the curious part about all of this: when we set a provider's office manager or billing manager at anywhere but their office, they object and move for protective order as to the location. Usually they don't bother to set the motion for protective order for hearing. They just don't show up. Then we file a motion to compel, and motion for sanctions, the court requires the defendant to travel! Just the reverse of how the law is to work. Then we got their office, and end up sitting on a stool in the corner to take the deposition. Oh well, it's PIP-land. Hey, maybe it is more like "Chutes and Ladders", but seems like we are always getting the chute!
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June 16, 2009
Dora Ubeda - Document
The Miami-Dade appellate court reversed Judge King on the issue of a prematurely filed presuit demand. In the case there was no question but that the initial presuit demand was prematurely served before the charges were overdue. The plaintiff’s rationale was that they did not file suit until the charges were fully overdue so no harm, no foul.
The plaintiff also tried to “cure” by serving another presuit demand while suit the pending. That was also found by the court to be invalid.
Rather, the court followed the plain and unambiguous language of the statute and held that if the charges are not yet overdue, then you cannot serve a presuit demand.
One would have thought that Progressive v. Menendez would have carried the day, hands down. In that case no presuit demand was served, and the court held dismissal was required. Here effectively no presuit demand was served because it was served prematurely. While the court did see a distinction, nevertheless they held it was not a distinction that made a difference.
Also note the discussion about the “horn of dilemma” with a premature presuit demand: “to pay or not to pay, that is the question!” This decision should remove some of that question or doubt about what to do under this scenario.
The only downside, I suppose, is that court’s ruling that a dismissal or abatement is required. Menendez requires dismissal, period!
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