Presented by the Personal Injury Protection (PIP) Litigation Practice Group

Florida’s Fourth District Court of Appeal Issues Opinion in Support of an Insurer’s Statutory Rights to Request Documentation

An opinion from Florida’s Fourth District Court of Appeal is an excellent reminder of an insurer’s statutory rights to request documentation, like evidence of an emergency medical condition (EMC), to safeguard against arguments that it had already received that determination before a lawsuit is filed.

Under Florida law, personal injury protection (PIP) benefits are limited to $2,500 unless the claimant has an EMC. Ideally, a medical provider will submit written documentation directly to the insurer that its patient suffered from an EMC. If the insurer fails to receive any documentation of an EMC, it lawfully limits payment of PIP benefits to $2,500.

But what if a medical provider claims it submitted an EMC determination to the insurer but still had its benefits limited to $2,500? Even worse, what if a lawsuit is filed against an insurer without any evidence it received the alleged EMC documentation?

Resolving these questions is inherently factual in nature, oftentimes forcing an insurance carrier to litigate whether or not it actually received documentation that its insured suffered an EMC. Under Florida’s PIP law, litigation over an such an issue can be costly for insurers given the statute’s attorney’s fees and costs provision.

In a case shining light on this issue, the Fourth District Court of Appeal opined regarding whether or not a medical provider can ignore an insurance company’s request pursuant to Fla. Stat. 627.736(6)(b) for documentation of an EMC. In Garrison Property & Casualty Insurance Company v. Aventura Orthopedic Care Center, P.A., a/a/o Zulinda De Los Santos, the medical provider maintained that it included documentation of its patient’s EMC with the initial mailing of the claim documents. Likewise, the insurer consistently held that it never received the EMC documentation from the provider. In response to the provider’s claim for benefits, the insurer tendered partial payment along with an “Explanation for the Review Amount.” In this Explanation, it stated:

Per F.S.A 627.736(1)(a)4, $2,500.00 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 this initial request, the insurer made approximately 30 more requests for EMC documentation, all of which went ignored by the provider. Instead, the provider filed a lawsuit against the insurer, alleging it had breached the contract because it possessed the EMC documentation and still limited benefits to $2,500.

The Fourth District Court of Appeal held that “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.” The court ultimately sided with the insurer and concluded 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 would not only be reasonable, but it would also have complied with section 627.736(6)(b).”

This opinion is good news for insurance companies who can be glad there are safeguards they can utilize to defend themselves from these type of situations.


The material in this law alert has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note to ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved.