Tag Archives: United Auto

by | January 14, 2015 · 5:14 pm

Appellate Court Rules that Two Providers Not “Prevailing Insureds”

A trial court ruling awarding attorney’s fees to two medical treatment providers was reversed by the Appellate Division of the Eleventh Judicial Circuit in and for Miami-Dade County in an opinion filed January 9, 2015. The court concluded that the providers did not constitute “prevailing insureds” and therefore were not entitled to the statutory award of attorney’s fees.

Fritznel Leconte was allegedly injured in an automobile accident on July 22, 2006, while insured by a PIP insurance policy issued by United Automobile Insurance Co. He received treatment from two providers—A Rehab Associates and Med Plus Centers—and assigned his PIP claims to them. The cases were tried separately and consolidated on appeal.

In response to a pre-suit statutory Demand Letter, United determined it was responsible only for the cost of the pre-IME (Independent Medical Exam) treatments and offered A Rehab $595.20 and Med Plus $1,324.80. At trial, verdicts were returned in favor of the providers for the exact amounts offered earlier by United.

The providers filed motions for attorney’s fees as “prevailing insureds” pursuant to Florida Statutes section 627.428. That statute grants an insured the right to recover attorney’s fees when the insured obtains a judgment or decree against the insurer, i.e., is a “prevailing insured.” The question before the court was whether an insured is a “prevailing insured” when it obtains a judgment no better than the amount offered by the insurer pre-suit.

The court held that the “prevailing insured” referred to in the statute is “one who has obtained a judgment greater than any offer of settlement tendered by the insurer.” Put another way, “insureds who rejects settlement offers that would make them whole cannot seek attorney’s fees under section 627.428.”

In this case, the judgments received were not greater than the amount offered by the insurer prior to the suit, so the insureds do not qualify as “prevailing insureds” and are not entitled to attorney’s fees pursuant to section 627.428.

United Automobile Ins. Co. v. A Rehab Assoc. and United Automobile Ins. Co. v. Med Plus Centers, Case Nos. 12-413 AP, 13-148 AP, 12-381 AP, 13-147 AP (Fla. 11th Cir. January 9, 2015).

Click on the link to access the court ruling.

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by | May 30, 2014 · 4:56 pm

Attorney Fee Conflict Settled in Advanced Chiropractic v. UAIC

On May 29, 2014, the Florida Supreme Court issued a decision settling a conflict over the timeliness of filing for attorney’s fees.

The case originated in Broward County with an action filed by Advanced Chiropractic against United Automobile Insurance Co. (“UAIC”) for PIP benefits. During the course of the action, the attorney for Advanced moved offices and filed a change of address with the Clerk of Court. Two months later, Advanced and UAIC entered into a settlement agreement in which UAIC agreed to pay Advanced’s attorney’s fees. The trial court judge subsequently entered an order of dismissal in the case.

Advanced’s attorney never received a copy of the dismissal because the Clerk of Court failed to update its records concerning the address change. Once he learned of the dismissal, months later, counsel for Advanced filed a motion for attorney’s fees. Because the motion was filed past the mandatory 30-day deadline, the attorney moved to vacate the order of dismissal based on excusable neglect due to the court’s failure to update its records.

In a hearing on the motion to vacate the dismissal, the attorney for Advanced and an employee of the Clerk of Court both filed unsworn statements. The county court found that Advanced had established excusable neglect, vacated the order of dismissal, and allowed Advanced’s attorney to file a motion for attorney’s fees.

UAIC appealed the decision to the circuit court, contending that counsel for Advanced had not established excusable neglect. The circuit court held that, because the statements from the attorney and the Court’s employee were unsworn, there was not sufficient evidence to support the finding of excusable neglect. The circuit court therefore reinstated the order of dismissal.

Advanced appealed to the Fourth District, asserting that the circuit court had failed to apply the correct legal standard. The Fourth District concluded that Advanced had been denied due process and therefore quashed the decision of the circuit court.

Advanced then filed a motion for attorney’s fees. UAIC opposed the motion on the basis that it was untimely pursuant to the FL Rules of Appellate Procedure. The District Court dismissed UAIC’s argument based on the Rules of Appellate Procedure, but nonetheless denied the motion for attorney’s fees on the basis of the FL Supreme Court’s 1991 holding in Stockman v. Downs, which requires parties to plead entitlement to attorney’s fees.

The Fourth District held that, pursuant to the Stockman decision, the request for attorney’s fees must be made in the pleadings which, in this case, would be the petition, the response, or the reply. Because Advanced did not request fees in the petition or reply, the district court held that the motion was untimely. The state Supreme Court then agreed to review the case to consider whether the Fourth District misapplied the Stockman decision.

In the Stockman case, the Supreme Court addressed whether a prevailing party could raise entitlement to attorney’s fees for the first time by motion after trial. The Court held that a claim for attorney’s fees based upon a contract or statute is waived unless it is made in the pleadings. The Court explained that the fundamental concern is that the parties have notice of the claim as it may affect the decisions of the parties with respect to the case.

In distinguishing Stockman from this case, the Court noted that Stockman involved a request at the trial level and that the primary concern—lack of notice—is not implicated in the case at hand. Since Advanced requested attorney’s fees in both the county and circuit courts,   UAIC could not contend unfair surprise when Advanced again claimed entitlement to attorney’s fees. Consequently, the Court quashed the decision in the court below and remanded to the district court for a determination of the amount of attorney’s fees to which Advanced is entitled.

The case is Advanced Chiropractic And Rehabilitation Center, Corporation vs. United Automobile Insurance Company, Supreme Court of Florida, Case No. SC13-153, May 29, 2014.

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by | November 18, 2013 · 9:52 am

UAIC v. Atlantic Medical Specialty

Atlantic Medical Specialty (Atlantic) provided treatment to Manuel Floyd, an individual insured by United Auto, following a November 19, 2007 automobile accident. Atlantic subsequently filed a PIP claim with United Auto, demanding payment for medical treatment or services provided to the insured. United Auto failed to pay, and Atlantic filed suit.

In its answer to Atlantic’s complaint, United Auto asserted the affirmative defense that the medical treatment was not lawfully rendered as Atlantic failed to comply with chiropractic record-keeping statutory requirements.  In response, Atlantic filed a motion for summary judgment, asserting that United Auto’s defense had no legal basis. The trial court granted Atlantic’s motion for summary judgment.

The appellate court found that the affirmative defense that the medical treatment was unlawfully rendered was a valid affirmative defense as it was asserted under section 627.736(5)(b)(1)(b) of Florida Statutes.  The court further found that failure to comply with chiropractic record-keeping requirements is a valid legal ground to support such a defense. As such, the striking of the defense by the trial court was erroneous.

The appellate court also found that summary judgment in Atlantic’s favor on the issue of reasonableness, relatedness, and medical necessity, was improperly entered because Atlantic had not met its initial burden of proof to conclusively show the absence of genuine issues of material fact.

The appellate reversed and remanded the case for further proceedings in the trial court.

Click on the link to read the appellate court ruling in United Automobile Insurance Company, Appellant, v. Atlantic Medical Specialty, Inc., A/A/O Manuel F. Floyd, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 12-010 AP. L.T. Case No. 09-01233 CC 05. August 29, 2013.

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by | November 6, 2013 · 11:22 am

Miami Court Rules on Reasonable and Unreasonable Charges

In an October 8, 2013 ruling in the matter New Medical Group, Inc. vs. United Automobile Insurance Company by Judge King in the County Court of Miami-Dade County, the court held that an insurer is not required to expressly elect to pay only a reasonable charge. Furthermore, the Court held that the insurer cannot be required to pay 80% of “unreasonable” charges simply because it did not initially elect to use the fact-dependent reasonableness standard.

Pursuant to the Florida PIP statute, two alternative methodologies exist to determine whether a medical provider’s charges are reasonable. In the first, reasonableness is a fact-dependent inquiry determined by consideration of various factors, including state and federal fee schedules. Section 627.736(5)(a)1. Alternatively, the insurer may limit reimbursement to the provided fee schedules, thereby avoiding submission of the reasonableness issue to the trier of fact.  (5)(a)2.

In Geico Gen. Ins. Co. v. Virtual Imaging Servs, Inc., the Supreme Court held that the insurer cannot limit reimbursement to the fee schedules pursuant to (5)(a)2 unless it makes an express election in its policy to do so.  This methodology is considered “permissive.”  To the contrary, the reasonableness determination in (5)(a)1 is mandatory, not permissive, and is considered the “default methodology.” A PIP insurer is not required to expressly elect to pay only a reasonable charge.

Concerning the determination of the reasonableness of charges, the PIP statute expressly prohibits medical providers from submitting unreasonable charges. (5)(a)1. The burden lies with the plaintiff to prove the reasonableness of the charges. The burden of proof does not shift to the insurer to prove that the charges are unreasonable simply because they did not expressly elect (5)(a)1, which is the mandatory, default method of determining reasonableness. Thus, absent a valid election under (5)(a)2, the issue of reasonableness is a question for the trier of fact under the methodology described in (5)(a)1.

The case is New Medical Group, Inc. v. United Automobile Insurance Co., Civil Division Case No. 11-01870 SP 26 (Fla. Miami-Dade Cty. 2013). Click on the link to read the Judge’s Order.

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