County Civil Court:  CIVIL PROCEDURE – Summary Judgment – common-law certiorari relief available to review alleged discovery errors – trial court erred in granting insurer partial summary judgment for insured’s failure to respond to request for additional documentation pursuant to Florida Statutes, section 627.736(6)(b) – the insurer’s general request to “please submit additional documentation” created a fact issue as to whether the request was specific enough to put insured on notice as to what additional documentation that was needed  – Petition granted.  Stein v. Progressive Ins. Co., Appeal No. 05-0064AP-88A (Fla. 6th Cir. App. Ct. May 30, 2006). 









on behalf of BRIANNE MURPHY,




vs.                                                                                                Appeal No.05-0064AP-88A









            THIS CAUSE came before the Court on the Petition for Writ of Certiorari, the Response and the Reply.   Upon consideration of the same, the record and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

            The Petitioner, Jeffrey M. Stein, D.D.S., on behalf of Brianne Murphy (Stein), seeks review of the Order Granting Defendant’s Motion for Partial Summary Judgment, entered July 11, 2005, in favor of the Respondent, Progressive Insurance Company (Progressive).  The trial court granted Progressive partial summary judgment concluding that Stein had failed to respond to Progressive’s request for additional documentation pursuant to Florida Statutes, § 627.736(6)(b).  The Court finds that it does have jurisdiction to review the Petition as the order under review presents a departure from the essential requirements of law, resulting in material injury that cannot be effectively remedied on post-judgment appeal.  See Reeves v. Fleetwood Homes of Florida, Inc., 889 So.2d 812, 822 (Fla. 2004); see also Progressive Express Ins. Co. v. Broussard, 12 Fla. L. Weekly 277 (Fla. 6th Cir. App. Ct. Dec. 6, 2004)(granting common-law certiorari review of order that dispensed with statutorily mandated pre-suit procedure). 

            The pertinent facts are that the insured, Brianne Murphy (Murphy), was involved in an automobile accident on October 22, 2002, and sought medical treatment from Stein.  Murphy assigned her benefits, under her policy of insurance issued by Progressive, to Stein.  Stein provided treatment and sold medical supplies to Murphy on November 4, 2002, and November 6, 2002, and submitted HCFA forms and an Initial Narrative to Progressive.  From the two claims, Progressive sought additional information for three charges, to wit:  (1) $175 charge for a “Diagnostic Cast”, CPT  99070, dated 11/4/02; (2) $ 50 charge, CPT 64550, 11/6/02, and; (3) $ 50 charge, CPT 64550, 11/6/02.  The Procedure Guide attached to the claims define CPT 99070 as:  “Supplies and materials (except spectacles), provided by the physician over and above those usually included with the office visit or other services rendered (list drugs, trays, supplies, or materials provided)”; CPT 64550 is defined as:  “Application of surface (transcutaneous) neurostimulator.” 

            Progressive’s Explanation of Benefits (EOB) assigned an explanation code X998 for each of these charges and requested that Stein “please submit additional documentation.”  Stein did not respond to the request for additional documentation and filed suit against Progressive on January 28, 2003.  Progressive moved for partial summary judgment as to the charges arguing that Stein’s suit was premature since he had not responded to the request for additional information.  After a hearing, the trial court granted the motion.

            Stein argues that the trial court departed from the essential requirements of law in placing the burden on him to authenticate a claim for PIP benefits within thirty days.  Under the facts of this case, the Court agrees.  Initially, the Court reiterates the well-settled law that summary judgment can only be granted when the moving party irrefutably establishes that the nonmoving party cannot prevail; even the slightest doubt must be resolved against the moving party.  See Hervey v. Alfonso, 650 So.2d 644, 645-46 (Fla. 2d DCA 1995). 

            Florida Statutes, § 627.736(6)(b), provides that:

If an insurer makes a written request for documentation or information under this paragraph within 30 days after having received notice of the amount of a covered loss under paragraph (4)(a), the amount or partial amount which is the subject of the insurer’s inquiry shall become overdue if the insurer does not pay in accordance with paragraph (4)(b) or within 10 days after the insurer’s receipt of the requested documentation or information, whichever occurs later.  (emphasis added).


As pointed out by Progressive, several county courts have applied this section as extending the insurer’s time for payment when additional information has been timely requested, within 30 days of receipt of the claim, and concluded that suit was filed prematurely when the insured failed to respond.[1]  See Drew Medical, Inc. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 403 (Fla. Seminole Cty. Ct. Jan. 3, 2005)(granting insurer’s motion for summary judgment when medical provider had not provided documentation requested by EOB prior to filing suit, concluding that the amount at issue had not become overdue and suit was premature); Wellington Chiropractor Center of Palm Beach, Inc. v. Nationwide Mutual Ins. Co., 11 Fla. L. Weekly Supp. 929 (Fla. Palm Beach Cty. Ct. Aug. 3, 2004)(same); Physicians Extended Services v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 649 (Fla. Orange Cty. Ct. April 21, 2004)(same); Hess Spinal & Medical Centers, Inc. v. Direct General Ins. Co., 11 Fla. L. Weekly Supp.  337 (Fla. Pinellas Cty. Ct. Feb. 4, 2004)(same). 

There is no dispute that Progressive requested additional documentation within thirty days of receipt of the claim.  However, unlike the cases cited above, the Court finds that the EOB in this case only generally requested “additional documentation,” without more.  Compare with Drew Medical, supra, (requesting copies of all test results, including raw date, wave forms and physician’s interpretation); Wellington Chirpractor, supra, (requesting a detailed report to support the charge for the level of the initial office visit billed, details on what therapeutic activities had been provided to the patient, and clarification on a charge for neuromuscular education); Physicians Extended Services, supra, (requesting that the provider submit an invoice from the supplier to determine proper payment for medical appliances/equipment); Hess Spinal, supra, (requesting a definitive description of the supply charge which the insured acknowledged was provided only after suit was filed); see also Wittmer Clinic of Chiropractic, P.A. v. Hamil, 13 Fla. L. Weekly Supp. 160 (Fla. Orange Cty. Ct. Oct. 3, 2005)(granting summary judgment when medical provider failed to respond to timely request to submit an invoice from the supplier to determine proper payment for medical appliances/equipment); Richard Pomella, D.C. v. Progressive Bayside Ins. Co., 12 Fla. L. Weekly Supp. 678 (Fla. Broward Cty. Ct. March 16, 2005)(granting summary judgment when medical provider failed to respond to insurer’s request to describe the techniques and tasks used in the performance of therapeutic exercises). 

No specific information was requested by Progressive from Stein.  The Court finds that, at a minimum, a doubt remains as to whether the EOB provided to Stein was specific enough to put him on notice as to what additional documentation was needed.  Accordingly, based on the appellate record and that all inferences therefrom should be indulged in favor of Stein, the Court finds that the trial court erred in entering partial summary judgment.  See Hervey, 650 So.2d 646. 




            Therefore, it is,

            ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is granted.  The Order Granting Defendant’s Motion for Partial Summary Judgment is reversed and this cause is remanded for action consistent with this order and opinion.  It is further

            ORDERED AND ADJUDGED that the Respondent’s Motion for Appellate Attorney’s Fees and Costs is denied.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of May 2006.






                                                JOHN A. SCHAEFER

                                                Circuit Judge, Appellate Division






_______________________________                      ______________________________

LAUREN LAUGHLIN                                              JAMES CASE

Circuit Judge, Appellate Division                                   Circuit Judge, Appellate Division



Copies furnished to:


Judge Myra Scott McNary


David A. Papa, Esquire

1724 Gulf to Bay Boulevard

Clearwater, FL  33755


Fotini Z. Manolakos, Esquire

Heather C. Goodis, Esquire

Post Office Box 90

St. Petersburg, FL  33731


[1] While these county court cases are not binding, the Court finds that they are informative given the factual similarities with this case and since there are no appellate decisions on point.