28 Fla. L. Weekly Supp. 88b
Online Reference: FLWSUPP 2801GOOC
Insurance — Personal injury protection — Discovery — Failure to comply — Sanctions — Where insurer that asserted exhaustion of benefits defense failed to produce requested PIP log that would reveal whether gratuitous payments had been made, sanctions are awarded in favor of medical provider notwithstanding fact that, once produced, log showed that benefits had been properly exhausted without any gratuitous payments
SOUTH BROWARD HOSPITAL DISTRICT a/a/o Amanda Gooch, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE19000380, Division 48. March 9,2020. Jennifer Hilal, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff.
ORDER AWARDING SANCTIONS AGAINST DEFENDANT
THIS CAUSE having come before the Court on February 27, 2020, upon Plaintiff’s Motion for Defendant’s Bad Faith and Egregious Conduct in Failing to Timely Provide a PIP Log, and the Court having considered the motions, having heard argument of counsel and being otherwise fully advised, it is hereupon ORDERED that Plaintiff’s Motion for Sanctions is GRANTED, for the following reasons:
On January 3, 2019, Plaintiff filed its Complaint for Breach of Contract. In its Answer to the Complaint (served March 18, 2019), Defendant asserted that the PIP policy limits had been exhausted, as a result of which Defendant would not be liable for payment of any additional amount.
Once PIP benefits are exhausted through the payment of valid claims, an insurer has no further liability on an unresolved, pending claim. Northwoods Sports Med. & Physical Rehab., Inc. v. State Farm Mut. Auto. Ins. Co., 137 So.3d 1049 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D491a]. However, Sec. 627.736(5)(b), Fla. Stat. provides that a medical provider’s statement of charges for treatment or services rendered to the insured may not include charges for treatment or services rendered more than 30 days before the date the statement of charges is sent to the insurer, and that the insurer is not required to pay charges for treatment or services which were rendered more than 30 days before the statement of charges is sent to the insurer. Accordingly, any payment to a medical provider for charges submitted in violation of the 30-day time requirement is treated as gratuitous and is not considered as having been made against the limits of the PIP policy. Coral Imaging Services a/a/o Virgilio Reyes v. Geico Indemnity Ins. Co., 955 So.2d 11 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D2478a].
On April 1, 2019, Plaintiff served its Request to Produce to Defendant, request no. 4 of which requested production of Defendant’s PIP Log. Since the PIP Log is a list of all medical providers who have submitted bills, the dates on which those bills were received and the dates of service for each bill submitted, the PIP Log requested would reveal whether a medical provider’s bill potentially includes charges for treatment or services rendered more than 30 days before the bill was sent to Defendant, in which case payment by Defendant would have been gratuitous and benefits would not have been properly exhausted.
As of July 10, 2019, Defendant having failed to produce a PIP Log and having failed to respond to Plaintiff’s Request to Produce, Plaintiff served its Motion to Compel. As of August 9, 2019, Defendant having still failed to produce a PIP Log and having still failed to respond to Plaintiff’s Request to Produce, Plaintiff coordinated the deposition of Defendant’s corporate representative, scheduling the deposition to occur on January 14, 2020. As of October 1, 2019, Defendant having still failed to produce a PIP Log and having still failed to respond to Plaintiff’s Request to Produce, Plaintiff served its Ex Parte Motion to Compel. On October 14, 2019, this Court granted Plaintiff’s Ex Parte Motion to Compel Discovery, requiring Defendant to comply with the original discovery demand within ten (10) days, failing which the Order provides that “sanctions may be imposed.”
Defendant failed to produce the PIP Log that had been requested on April 1, 2019 until January 13, 2020, the day prior to the scheduled deposition of its corporate representative. The PIP Log produced by Defendant on January 13, 2020 shows that the medical providers’ statements of charges did not include charges for treatment or services rendered more than 30 days before the date the statements of charges were sent to Defendant, that none of the payments made by Defendant were gratuitous and that benefits had been properly exhausted.
Although Defendant advised that benefits had been exhausted in its answer to the complaint, Plaintiff was entitled to production of the PIP Log in order to confirm that benefits had been properly exhausted and that Defendant had not made a gratuitous payment. There is no reasonable explanation for Defendant’s failure to produce a PIP Log until 288 days after it had been requested. Defendant’s bad faith and egregious conduct in failing produce the PIP Log in a timely fashion has caused an unnecessary waste of the Court’s time and an unnecessary waste of the Plaintiff’s time. Plaintiff has unnecessarily incurred attorneys’ fees and costs, for which the Court awards sanctions in favor of the Plaintiff in the amount of $800.00. See Summit Radiology, LLC a/a/o Charlotte Mardo v. State Farm Mut. Auto. Ins. Co., 23 Fla. L. Weekly Supp. 479a (Broward County, Sept. 2, 2015) (insurer ordered to pay attorney’s fees and costs incurred by medical provider after ignoring provider’s requests for PIP log and ignoring court order to provide PIP log)