18 Fla. L. Weekly Supp. 486b
Online Reference: FLWSUPP 1805LIFE
Insurance — Personal injury protection — Stay — Motion to stay case pending appellate court decision in unrelated cases resolving issue of whether PIP insurer may pay less than Medicare fee schedule by applying Outpatient Prospective Payment System limitations is denied where insurer has not shown that resolution of OPPS issue will totally resolve subject case, and medical provider would be harmed by stay
LIFESOURCE FAMILY CHIROPRACTIC INC. (a/a/o Ralph Snyder) vs. THE PHOENIX INSURANCE COMPANY. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-15539 COCE (50). March 16, 2011. Honorable Peter B. Skolnik, Judge. Counsel: Emilio Stillo and Joseph Ronald Pliego II, for Plaintiff. David B. Kampf, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO STAY
THIS CAUSE came before the Court March 15, 2011, on Defendant, and the Court’s having reviewed the entire Court file; heard argument; reviewed relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background. The Plaintiff treated Ralph Snyder for injuries suffered in automobile accident on or about December 28, 2009. The Defendant did not pay Plaintiff’s bills in full and the Plaintiff initiated suit. On or about January 10, 2011, the Defendant filed a Motion to Stay based on the fact that the “OPPS” issue is “likely to reach the Florida Supreme Court or a District Court of Appeal in the very near future” . On or about January 10, 2011, the Defendant filed its Answer and Affirmative Defenses stating seven different defenses including: the Plaintiff submitted charges that exceed the permitted amount a provider may bill, the Defendant may pay less than the medicare fee schedule, 627.428 does not apply because there is no contract between the Plaintiff and the Defendant, the Plaintiff did not respond to a FS 627.736 (6)(B) request for information, Box 31 was not properly completed as well as other defenses.
Conclusions of Law As the moving party, it is Defendant’s burden to show by admissible evidence that the subject case will be totally resolved by the pending appellate cases relied on its motion. Courts must reject unsworn assertions of fact merely based on utterances of counsel. Chrysler Corp v. Miller, 450 So.2d 330 (Fla. 4th DCA 1984). In Williams v. Edwards, 604 So.2d 930 (Fla. 5th DCA 1992), the court found an abuse of discretion in the trial court’s stay pending the Florida Supreme Court’s decision of an unrelated case, even though the same issues were raised in both cases. The Court stated:
While the trial court was concerned with the effect of multiple appeals on the ultimate trial in this case, if any, to allow trial courts to stay cases until cases which resolve pending issues are determined by the supreme court would lead to inordinate delay and confusion at the trial court level.
Williams, supra at 932.
In Shoemaker v. State Farm Mut. Aut. Ins. Co., 890 So.2d 1195 (Fla. 5th DCA 2005) [30 Fla. L. Weekly D173a], the court reversed a stay granted in favor of State Farm, which stayed an insured’s suit against State Farm pending the outcome of appeals in unrelated cases involving State Farm and allegedly involving substantially similar allegations made by other insureds. The insured in Shoemaker was not a party to the other cases on appeal, the appeals were not in the same court and did not involve identical dispositive issues. The cases did not arise out of the same accident or insurance contract, and an indefinite stay would cause unnecessary delay.
Factors which are considered by a court in deciding whether to grant a stay include the moving party’s likelihood of success on the merits, and the likelihood of harm should a stay not be granted. State ex rel. Price v. McCord, 380 So.2d 1037 (Fla.1980). The Court finds the Plaintiff would be harmed by the stay.
ORDERED and ADJUDGED that Defendant’s Motion to Stay is Denied