GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY v. AVENTURA ORTHOPEDICARE CENTER, P.A. A/A/O ZUNILDA DE LOS SANTOS

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

GARRISON PROPERTY & CASUALTY INSURANCE COMPANY,
Appellant,

v.

AVENTURA ORTHOPEDICARE CENTER, P.A.,
a/a/o ZULINDA DE LOS SANTOS,
Appellee.

No. 4D21-379

[June 30, 2021]

Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Phoebee Francois, Judge; L.T. Case Nos. COWE16-5530
and CACE19-23792.

Rebecca O’Dell Townsend and Scott W. Dutton of Dutton Law Group,
P.A., Fort Lauderdale, for appellant.

Christina M. Kalin and John C. Daly of Daly & Barber, P.A., Plantation,
for appellee.

FORST, J.

Appellant Garrison Property & Casualty Insurance Company (“Insurer”)
seeks review of the trial court’s order denying its motion for summary
judgment and granting Appellee Aventura Orthopedicare Center, P.A.’s
(“Provider”) motion for confession of judgment and attorney’s fees. On
appeal, Insurer argues that the trial court erred by granting final judgment
in favor of Provider because Provider failed to respond to Insurer’s requests
for information pursuant to section 627.736(6)(b), Florida Statutes (2016).
We agree and reverse.

Background

Zunilda De Los Santos (“Insured”) sustained injuries from a motor
vehicle accident. Insured received treatment from Provider. On the first
date of treatment, a qualified physician evaluated Insured and determined
that Insured had suffered an emergency medical condition (“EMC”).
 Provider timely submitted a claim to Insurer for the costs of treatment
and has consistently maintained that it included documentation of the
EMC determination with the initial mailing of the claim documents.
Insurer, on the other hand, has consistently maintained that it did not
receive documentation of the EMC determination, although it
acknowledges that it had received the remainder of the claim documents.
In response to Provider’s claim, Insurer tendered a portion of the funds
along with an “Explanation for the Review Amount.” In pertinent part, the
“Explanation” stated:

Per F.S.A 627.736(1)(a)4, $2500.00 has been reimbursed. In
order to make any additional reimbursement decisions, please
provide the determination of the patient’s emergency medical
condition by a provider authorized in 627.736(1)(a)3 & 4. This
is a written request pursuant to F.S.A 627.736(6)(b).

Following the initial request, Insurer sent approximately thirty more
identical requests to Provider seeking the EMC determination, two of
which were sent in response to Provider’s pre-suit demand letter. Provider
did not respond to any of the (6)(b) written requests, electing instead to file
suit.

During discovery, Provider eventually produced the EMC
determination, and Insurer tendered the remaining balance due under the
insurance policy to Provider. Following this payment, the only issue
remaining between the parties was an award of attorney’s fees pursuant
to section 627.428, Florida Statutes (2016).

Insurer moved for summary judgment, maintaining that the suit was
premature due to Provider’s failure to comply with section 627.736(6)(b),
Florida Statutes (2016). Provider countered with a motion for confession
of judgment and award of attorney’s fees because Insurer paid the claim
after suit had been filed.

At the hearing on both motions, Insurer argued that, even if Provider
established that the EMC determination had been sent to Insurer with the
original claim documents, the suit was still premature because Provider
failed to respond to any of Insurer’s requests for information pursuant to
section 627.736(6)(b). Insurer contended that the statute’s language
required Provider to respond to Insurer’s request for information before
filing suit, regardless of whether the EMC determination had been sent.

Following the hearing, the trial court issued a short order denying
Insurer’s motion for summary judgment and granting Provider’s motion

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for confession of judgment. A corresponding final judgment of dismissal
was entered in Provider’s favor. Insurer filed a timely notice of appeal.

Analysis

“The issue before this Court is a matter of statutory construction, which
we review de novo.” Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d
362, 367 (Fla. 2013); see also Delta Fire Sprinklers, Inc. v. OneBeacon Ins.
Co., 937 So. 2d 695, 697 (Fla. 5th DCA 2006) (“The standard of review
governing the ruling of a trial court on a motion for summary judgment
posing a pure question of law is de novo.”) (italics omitted).

In this case, we focus on two portions of section 627.736, Florida
Statutes (2016). First, section 627.736(4)(b)2. provides in pertinent part:

(b) Personal injury protection insurance benefits paid
pursuant to this section are overdue if not paid within 30 days
after the insurer is furnished written notice of the fact of a
covered loss and of the amount of same. However:

....

2. If an insurer pays only a portion of a claim . . . the insurer
shall provide at the time of the partial payment . . . an itemized
specification of each item that the insurer had . . . declined to
pay and any information that the insurer desires the claimant
to consider related to the medical necessity of the denied
treatment or to explain the reasonableness of the reduced
charge if this does not limit the introduction of evidence at
trial. . . .

Second, section 627.736(6)(b) states in pertinent part:

Every [qualifying medical provider] . . . shall, if requested by
the insurer against whom the claim has been made, furnish a
written report of the history, condition, treatment, dates, and
costs of such treatment of the injured person and why the
items identified by the insurer were reasonable in amount and
medically necessary, together with a sworn statement that the
treatment or services rendered were reasonable and necessary
with respect to the bodily injury sustained and identifying
which portion of the expenses for such treatment or services
was incurred as a result of such bodily injury, and produce,
and allow the inspection and copying of, his or her or its

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 records regarding such history, condition, treatment, dates,
and costs of treatment if this does not limit the introduction
of evidence at trial.

(emphasis added).

The best method to determine the legislature’s intent is to “look to the
actual language used in the statute.” Daniels v. Fla. Dep’t of Health, 898
So. 2d 61, 64 (Fla. 2005). “When the statute is clear and unambiguous,
courts will not look behind the statute’s plain language for legislative
intent or resort to rules of statutory construction to ascertain intent.” Id.

Here, Insurer paid only a portion of Provider’s claim. However, in
compliance with section 627.736(4)(b)2., Insurer specified the reason for
not paying the claim’s full amount (because it lacked the EMC
documentation) and, pursuant to both section 627.736(4)(b)2. and (6)(b),
Insurer set forth a request for the “information that the insurer desires the
claimant to consider related to the medical necessity of the denied
treatment.” As noted above, section 627.736(6)(b) states that the party
making the insurance claim “shall, if requested by the insurer against
whom the claim has been made, furnish a written report of the history,
condition, treatment, dates, and costs of such treatment of the injured
person . . . .” § 627.736(6)(b), Fla. Stat. (2016) (emphasis added).

We have previously held that an insurer has “the right, pursuant to
section 627.736(6)(b), to request a written report of the insured’s
condition.” Med. Ctr. of Palm Beaches v. USAA Cas. Ins. Co., 202 So. 3d
88, 92 (Fla. 4th DCA 2016). In the instant case, as in Medical Center,
Provider’s demand letter and lawsuit were “premature” due to Provider’s
failure to respond to Insurer’s numerous section 627.736(6)(b) requests
for EMC documentation. See id. at 92–93. Provider not only failed to send
(or resend) the requested information to Insurer, Provider also failed to
even respond and inform Insurer that it was under the impression that the
EMC determination had been included in the initial mailing.

Section 627.736(6)(b) is mandatory in nature and does not contain an
exception for a medical provider’s assertions that the EMC determination
had already been provided to the insurance company. As a safeguard for
abuse of section 627.736(6)(b), the statute provides that “[t]he person
requesting such records and such sworn statement shall pay all
reasonable costs connected therewith.” § 627.736(6)(b), Fla. Stat. (2016).

Accordingly, we agree with Insurer’s answer brief statement that:

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 [Provider] was not permitted to ignore [Insurer’s] [section
627.736]6(b) requests and then file suit, even if [Provider]
believed that [it] had previously sent an EMC determination to
[Insurer]. Litigation could have been avoided entirely if
[Provider] had simply followed the statutory prerequisites to
filing suit, spent 55 cents on a stamp, and mailed a copy of
[Provider’s] EMC determination to [Insurer] in response to any
one of [Insurer’s] thirty-three (33) requests for information
pursuant to § 627.736(6)(b), Fla. Stat.

Conclusion

We agree with Insurer that a provider (more accurately, the provider’s
attorneys) should not be rewarded for commencing an unnecessary
lawsuit rather than complying pre-suit with a reasonable request for
information/documentation. Such a response by Insurer would not only
have been reasonable, but it would also have complied with section
627.736(6)(b), Florida Statutes (2016). Because Provider failed to respond
to Insurer’s requests for the EMC determination made pursuant to section
627.736(6)(b), its lawsuit was premature, and Insurer’s post-suit payment
did not constitute a confession of judgment. Accordingly, we reverse the
trial court’s denial of Insurer’s motion for summary judgment and
corresponding grant of Provider’s motion for confession of judgment and
attorney’s fees. We remand with directions for the trial court to grant
Insurer’s motion for summary judgment.

Reversed and remanded with instructions.

LEVINE, C.J., and MAY, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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