Fla 35-day timely submission

USAA CASUALTY INSURANCE COMPANY vs CHRISTOS MIKROGIANNAKIS, Case No. 5D21-720 (Fla. 5th DCA 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The prior law in many unpublished cases before the Circuit Court Appellate Divisions was more provider friendly.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 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 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.

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