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 (
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE DIVISION
JEFFREY M. STEIN, D.D.S.,
on behalf of BRIANNE MURPHY,
Petitioner,
vs. Appeal No.05-0064AP-88A
UCN522005AP000064XXXXCV
PROGRESSIVE INSURANCE COMPANY,
Respondent.
____________________________________/
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 (
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
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.
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
________________________________
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
Fotini Z. Manolakos, Esquire
Heather C. Goodis, Esquire
Post Office Box 90