9 Fla. L. Weekly Supp. 853a
Insurance — Personal injury protection — Pleadings — Affirmative defenses that include allegation that diagnostic tests performed were not medically necessary; demand for attorney’s fees under statute which forbids medical providers from ordering, procuring, providing or administering unnecessary diagnostic tests; and allegation that insurer determined from independent medical examination that insured had reached maximum medical improvement and no further chiropractic treatment was required are stricken because they are not avoidances of an otherwise valid claim but denials of medical provider’s claim
ASSOCIATED CHIROPRACTIC PHYSICIANS, INC., a Florida corporation, as assignee of Joshua Barber, Plaintiff, vs. ALLSTATE INDEMNITY COMPANY, a foreign corporation, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 02-8498-CC, Division F. September 27, 2002. James A. Ruth, Judge. Counsel: Raymond M. Ravis, Dunlap & Russell, P.A., Jacksonville, for Plaintiff. Mary Adkins, Ocala, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE
This matter having come before the Court on Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses, and the Court having reviewed the pleadings, having heard argument of counsel, and having otherwise considered the premises, does hereby find as follows:
1. This is a PIP lawsuit wherein the Plaintiff alleges that the Defendant has improperly denied claims for medical services rendered to Defendant’s insured.
2. Defendant has raised three (3) affirmative defenses in response to Plaintiff’s Complaint. Defendant’s First Affirmative Defense reads: “Defendant affirmatively alleges that the diagnostic tests performed upon Plaintiff were not proper in that they were not medically necessary, reasonable or related to the aforementioned motor vehicle accident.” Defendant’s Second Affirmative Defense reads: “Defendant demands reasonable attorney’s fees and costs under Florida Statute §766.11, which forbids health care providers from ordering, procuring, providing, or administering unnecessary diagnostic tests which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient’s condition.” Defendant’s Third Affirmative Defense reads: “Pursuant to Florida Statute §627.736(7)(a), Defendant has complied with said statute in ordering an independent medical examination of the insured and based upon such examination, insured was found to be at maximum medical improvement and no further chiropractic treatment was required. Consequently, Defendant is in compliance with Florida Statutes and with the contract between Allstate and Plaintiff.”
Based on the foregoing, the Court does hereby ORDER AND ADJUDGE:
1. Plaintiff’s Motion to Strike is GRANTED as to Defendant’s First, Second and Third Affirmative Defenses as the defenses raised are not avoidances of an otherwise valid claim but, rather, are simply denials of Plaintiff’s claim. See Tropical Exterminators v. Murray, 171 So.2d 432 (Fla. 2d DCA 1965).
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