11 Fla. L. Weekly Supp. 742a
Attorney’s fees — Insurance — Personal injury protection — Where PIP log requested by provider was not provided pre-suit, and insurer confessed judgment in declaratory judgment action seeking relief on issue of entitlement to log by providing log post-suit, issue of whether provider’s pre-suit demand letter was compliant with section 627.736(11) is moot, and provider is entitled to attorney’s fees
PALM BEACH REGIONAL MRI, INC., (Cynthia Jackman), Plaintiff(s), vs. SOUTHERN GROUP INDEMNITY, INC., Defendant(s). County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 2003 CC 029012 (RF). June 1, 2004. Joseph Marx, Judge. Counsel: Andrew D. Wyman, Marks & Fleischer, P.A., Fort Lauderdale, for Plaintiff. Adolfo Podrecca, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR ENTITLEMENT TO ATTORNEY’S FEES
THIS CAUSE having come on to be heard before me on May 6, 2004, on Plaintiff’s Motion for Entitlement to Attorney’s Fees, and the Court having heard the argument of counsel and being otherwise fully advised in the premises, this Court finds the facts are as follows:
1. On August 12, 2003, Plaintiff provided an MRI to Defendant’s insured, Cynthia Jackman. Plaintiff submitted its bill for services rendered; which was received by Defendant on or about August 19, 2003.
2. On September 25, 2003, Plaintiff sent Defendant a pre-suit demand letter pursuant to Florida Statute 627.736(11). This letter included language requesting a copy of the PIP payout log.
3. On October 13, 2003, Defendant sent correspondence to the Plaintiff, via fax and regular mail, advising that the claim was under investigation, but that PALM BEACH REGIONAL’s bill was the first one received and that itwould be applied to the deductible in any event.
4. Plaintiff claims that after receiving this letter, it then verbally requested the PIP log from Defendant’s representative who refused to provide it.
5. Defendant sent a second correspondence by mail dated October 23, 2003, indicating that Plaintiff’s bill had been applied to the deductible.
6. Plaintiff filed its Complaint on or about November 20, 2003. Plaintiff’s Complaint is an “action for declaratory reliefwith possible supplemental relief”. Specifically, Plaintiff is seeking declaratory relief on the issue of whether the insurer is required, on pre-suit demand by a healthcare provider, to furnish the provider with a current PIP payout sheet/log so that the provider may know its relative status with regard to the policy deductible.
7. On or about March 4, 2004, Defendant, in response to Plaintiff’s Request for Production, provided Plaintiff’s counsel with the PIP log. Plaintiff then filed this Motion for Entitlement asserting that Defendant has confessed judgment by providing the PIP log post-suit after refusing tohonor its pre-suit request.
In opposition to Plaintiff’s Motion for Entitlement, Defendant asserts that entitlement is not proper because 1) the PIP log was provided pre-suit pursuant to Plaintiff’s request; and 2) the pre-suit demand letter was defective in that it was not compliant with F. S. §627.736(11) because it was not sent to Defendant’s registered PIP liaison/contact as identified on the Department of Financial Services’ website. Plaintiff argues that neither of these defenses are valid at this point in time because the defenses being asserted address the merits of the underlying declaratory judgment action for which judgment has already been confessed.
The Court feels that it is obligated to view the documentary evidence submitted by Defendant in support of its claim that the PIP log was provided pre-suit. These items include 1) the October 13th letter from Defendant to Plaintiff; 2) the October 23rd letter from Defendant to Plaintiff; 3) a fax confirmation sheet confirming a transmission of one (1) page from Defendant to Plaintiff on October 13, 2004; 4) a copy of a fax cover page dated December 22, 2003, from Defendant to Plaintiff’s attorney; 5) an unredacted PIP log; and 6) a PIP log redacted so that providers other than Plaintiff are not revealed. The PIP logs reflect that Plaintiff’s bill was indeed the first bill received. After reviewing the above items, this Court finds that the PIP log was not provided pre-suit. As for Defendant’s defense that Plaintiff’s pre-suit demand letter was not compliant with F.S. §627.736(11), this Court does not address this defense, because this Court finds that Defendant confessed judgment by providing the PIP log post-suit; thus rendering the issue moot.
Defendant also argued that there is no requirement that Defendant provide a PIP log pre-suit, and that no cause of action exists for failure to do so. This Court disagrees, and finds as persuasive, Judge Arnold’s opinion in ROM Diagnostics (Rafael Cruz) vs. Security National Insurance Company, 9 Fla.L. Weekly Supp. 323b (County Court, Orange County, 2002). Based on the foregoing, it is hereby
ORDERED AND ADJUDGED that
1. Plaintiff’s Motion for Entitlement to Attorney’s Fees is hereby GRANTED.
2. Plaintiff properly sought declaratory relief on the issue of whether the Defendant is required, on pre-suit request from a health care provider, to produce a current PIP payout sheet/log so that the provider may know its position as it pertains to the deductible.
3. Under the facts as this Court finds them, Defendant’s conduct in belatedly furnishing the payout sheet post-suit, after refusing to honor a pre-suit request for the document, amounts to a confession of judgment.
4. This Court reserves jurisdiction to determine the amount of Plaintiff’s attorney’s fees and costs.
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