The failure to comply with record keeping requirements July 30, 2022


“We hold that, where an insurer agrees treatments are medically reasonable and necessary, a failure to comply with the record keeping requirements governing the licensing of chiropractors is not a basis
to refuse to compensate the claim. Accordingly, we affirm.”

This reminds of that Bruno, Gerbino cases from 8 years ago where the insurance carrier sought to disclaim benefits based upon am improper referral. The Appellate Division disagreed and found the violation was not a Mallela type of violation that would warrant a disclaimer of coverage.

Competing Assignees? July 30, 2022


We once heard of a thing called the New York Rule. Meet the English rule.

“At the time, USAA claimed that it never received the EMC determination from Less; while in fact, Less had sent the determination to USAA, but USAA had overlooked it. As a result, Less’s requests for payment went unpaid. Subsequently, USAA received a claim from the insured for lost wages and PIP transportation. USAA elected to pay insured’s personal claim. As the result of payment, the $10,000 in insurance benefits was exhausted. Less filed a breach of contract action against USAA. During suit, Less
presented the EMC determination it had timely submitted to USAA that USAA had overlooked. Throughout trial, this error by USAA was generally classified as an inadvertent mistake, except on summary judgment. Notably, in the pleadings, Less did not include a claim of bad faith in the breach of
contract action, did not amend the complaint to add a claim of bad faith, nor did it file a separate claim of bad faith pursuant to section 624.155, Florida Statutes (2020)”

“Though the trial court did not make a determination of bad faith, it instead held that benefits had not been exhausted because USAA’s payment of the insured’s claim was gratuitous because it was paid out of order pursuant to the English Rule of priority adopted by Florida courts. We find that the trial court misapplied the English Rule as the rule only applies to assignees (insurance providers) and not to the insured (typically the assignor). See Reg’l MRI of Orlando, Inc. a/a/o Lorraine Gerena v. State Farm Mut. Auto. Ins. Co., 18 Fla. L. Weekly Supp. 563a (Fla. 9th Cir. App. 2011) (“[T]he English Rule only applies to claims of competing assignees.”); see also Boulevard Nat. Bank of Miami v. Air Metal Indus., Inc., 176 So. 2d 94, 96 (Fla. 1965) (“[T]he so-called ‘English’ rule or ‘American’ rule of priority between assignees of successive assignments . . . .”); Northwoods,137 So. 3d at 1054 (“[T]he English rule of priorities, which gives priority to an assignee first giving notice to the creditor . . . .”). Because the English Rule does not apply to the insured, there is no basis for a gratuitous payment”

Very interesting in the priority of payment realm.

Fla pre-suit requirement is more demanding than thought July 30, 2022

The pre-suit demands. When the State of Florida engages in “lawsuit reform”, the pre-suit demand requirement enters the equation. We saw in 2020 and 2021 with the first-party homeowners cases, which in my estimation represent pure abuse and have made getting HO polices in Fla impossible. But on the PIP side, it is a tool to allow the carriers to close their eyes initially and then, when the pre-suit comes rolling in, pay out the policy to avoid the PIP suit.

The law as to the pre-suit demands on average usually spoke of substantial compliance and were not an effective weapon by the carriers to have county court PIP cases dismissed. These were the findings in published county court and Appellate Division decisions. Times are a changing.

“We have written that section 627.736(10)(b) requires precision in a presuit demand letter to encourage resolution of PIP claims before the filing of a lawsuit: The language of subsection 627.736(10)(b)3. requires precision in a demand letter by its requirement of an “itemized statement specifying each exact amount” . . . The statute mandates that the amount at issue for a bill be specified early in the claims process. This requirement of precision in medical bills discourages gamesmanship on the part of those
who might benefit from confusion and delay. The statutory requirements surrounding a demand letter are significant, substantive preconditions to bringing a cause of action for PIP benefits. MRI Assocs. of Am., LLC v. State Farm Fire & Cas. Co., 61 So. 3d 462, 465 (Fla. 4th DCA 2011); see also Rivera v. State Farm Mut. Auto. Ins. Co., 317 So. 3d 197, 205 (Fla. 3d DCA 2021).

The demand letter in this case was hardly precise in the amount claimed to be due. It sought $2,978.88 or $4,524.28, not the amount less than $100 sought in the lawsuit. “[T]he purpose of the demand letter is
not just notice of intent to sue. The demand letter also notifies the insurer as to the exact amount for which it will be sued if the insurer does not pay the claim.” Rivera, 317 So. 3d at 204. A demand letter that complies with the statute permits the insurer to accurately evaluate its decision to pay the claim or litigate. See, e.g., Venus Health Ctr. a/a/o Joally Rojas v. State Farm Fire & Cas. Co., 21 Fla. L. Weekly Supp. 496a (Fla. 11th Cir. Ct. Mar. 13, 2014).

We have fully considered the other issues raised by appellant. We see nothing in the language of section 627.736 that requires an insurer to give notice to the insured or an assignee that a demand letter is defective. The trial court did not abuse its discretion in allowing Geico to amend its affirmative defenses or in ruling on the offer of judgment.”

The letter stated PIP benefits were owed in a certain amount and, if the policy has Med Pay, another amount. Not how I would draft a pre-suit letter, but the carrier knew what was in controversy. Many of you want to know why the heck you’d sue foe less than $100 if $2500 or $5000 was owed. LOL.

At the end of the day, if payments were made, the provider is searching for some small FS difference of unpaid interest. That triggers an attorney fee that starts at $3000 and can go to $100,000. These Fla PIP lawsuits are generally more about attorney fees then benefits. But that does not answer the question: why sue for less than $100.

The filing fee for a lawsuit under $100 is $55. For an amount between $500-$2500 it is $175. From $2500 to $15,000, it is $300. After $15,000, it is $400, which is the Circuit Court filing fee.

Fla 35-day timely submission July 30, 2022


Again, as Florida moved all appeals to their mid level courts from their versions of the Appellate Terms (Appellate Divisions of a Circuit Court), many more appellate PIP decisions have been published. And I do not think this will surprise many – a more conservative Court that is owned by the Federalist society (I will prove this) has not been helpful to the providers. Note: I do not do politics on here. I leave that to my instagram and FB page. But, some of the writings contain reasonings I would not expect in PIP and PI appeals.

Also, to the Plaintiff attorneys who have said they want to delve into Fla PIP. I will say this. Don’t do it. You are all used to submitting a bill, filing a PIP arb or civil court suit and then getting paid or perhaps losing. Fla has a presuit regulation (which knocks off a majority of the PIP suits you can imagine), a limited $10K policy and reverse attorney fees. Your average case will be a policy condition matter that is going to go to a jury trial unless their is a limited hypertechincoa screw up you can find.

I enjoy it because it requires some level of thinking and postulating, but the standard NY PIP attorney will not be happy.

With that, I want to go back to the theme of my post.

Fla has a 35 day rule for submitting billings, similar to NY’s 45-day rule. Often times, you find pedestrians or those who do not know their insurer is. Unlike NY, Fla requires that a bill is submitted to somebody you believe affords coverage and then resubmit the bill to the correct provider once it is learned. Thus, submitting to nobody voids the bill.

The prior law in many unpublished cases before the Circuit Court Appellate Divisions was more provider friendly. Here we have a DCA case, and the provider lost. Here are the highlights:

“The statute requires a provider to submit invoices within thirty-five days of treatment and provides that the insurer is not required to pay any late

invoices. In this case, there is no dispute that the invoices were submitted more than thirty-five days after treatment.

Nevertheless, Mikrogiannakis attempts to seize upon the statutory exception to the rule which gives a provider, if the insured fails to provide correct PIP information, thirty-five days from the date the provider obtains the correct information. Specifically, Mikrogiannakis argues on appeal that PMPC received “erroneous information” because he left the field for insurance information blank despite having PIP coverage.

We reject Mikrogiannakis’s interpretation of subsection (5)(c)(1) based upon the exception’s plain language. Initially, we observe that the exception only applies where an insured “fails to furnish the provider with the correct name and address of the insured’s personal injury protection insurer.” In this
case, PMPC did not have any name or address of an insurer within thirtyfive days of treatment. In other words, PMPC had no information at all.

We readily acknowledge that Mikrogiannakis’s interpretation of this phrase has some technical appeal. In some sense, Mikrogiannakis did “fail[] to furnish [PMPC] with the correct name and address” of the insurer because he failed to complete the portion of the intake form relating to his PIP coverage. In that regard, he “fail[ed] to furnish” the correct information.

However, the “fair reading” method does not countenance a hyperliteral reading of a legal text. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 39 (1st Ed. 2012).
Instead, as we observed above, the method considers the text from the perspective of how a “reasonable reader, fully competent in the language, would have understood the text at the time it was issued.” Davis, 47 Fla. L. Weekly at S136 (citation omitted). “The endeavor requires aptitude in language, sound judgment, the suppression of personal preferences regarding the outcome, and, with older texts, historical linguistic research.” Scalia & Garner, Reading Law at 33. Finally, a “fair reading” considers the purpose of the text, “gathered only from the text itself, consistently with the other aspects of its context.” Id.

Given the undisputed summary judgment evidence, and the parties’ dueling motions for summary judgment, we reverse the trial court’s entry of summary judgment and final judgment for damages in favor of Mikrogiannakis and remand for entry of summary judgment in favor of USAA.

Elections have consequences folks.

Can an insurance carrier sue for “overpaid” PIP attorneys fees? July 30, 2022


(1) On June 11, 2013, Allstate filed a complaint against defendants alleging violations of IFPA, common law fraud, and unjust enrichment. The parties participated in discovery over the next seven years. On May 8, 2020, defendants moved for summary judgment. On July 29, 2020, Judge Swift issued a written decision and order granting defendants’ motions and dismissing all of Allstate’s IFPA and unjust enrichment claims, and a majority of Allstate’s common law fraud claims.”

(2) “As the judge aptly found, the payments were not made as a benefit pursuant to an insurance policy as contemplated by IFPA, but as a penalty against Allstate pursuant to N.J.A.C. 11:3-5.6(e). In that regard, the attorneyfee payments are not mentioned in the insured’s policy. Nor do they diminish the available PIP coverage to the insured, unlike payments to a successful provider or insured, which are paid out of the PIP coverage until the policy limit is exhausted. Furthermore, as the judge said, defendants were never paid what they asked for. Since it is undisputed that Legome was always paid a reasonable amount, which was determined by the arbitrator’s evaluation as established in the Code or by agreement of an Allstate adjuster, there was no harm to Allstate.”

Best Footnote: “Judge Swift emphasized he does not condone any of Legome’s alleged misconduct. Nor do we. The issue, however, is not whether Legome did anything unethical or otherwise unlawful, but whether Allstate has stated a viable claim under IFPA or the common law. We therefore must set aside our distaste for the underlying facts and scrutinize Allstate’s claims with the same objective lens we apply in any plaintiff’s cause of action. It bears noting that despite Allstate’s expressed moral outrage at Legome’s conduct, it apparently never reported these transgressions to the ethics committee, opting instead to pursue claims for money damages. Regardless, Legome has since been disbarred on unrelated ethics charges.”