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Filing # 14571985 Electronically Filed 06/09/2014 12:39:02 PM
IN THE COUNTY COURT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CENTRAL THERAPY CENTER, INC.,
A/A/O ERICHE GARCIA,
Plaintiff,
v. CASE NO: 2014-2253-CC-26 04
CIVIL DIVISION
PROGRESSIVE SELECT INSURANCE
COMPANY,
Defendant.
/
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW, Defendant, PROGRESSIVE SELECT INSURANCE COMPANY, by
and through the undersigned counsel, hereby files its Answer and Affirmative Defenses to
Plaintiff's Complaint and states as follows:
GENERAL ALLEGATIONS
1. Admitted for jurisdictional purposes only. Any and all other allegations are
specifically denied.
2. Without knowledge and therefore denied.
3. Admit that Defendant was and is a corporation licensed to transact business in the
State of Florida, and maintained offices in Miami-Dade County.
4. Without knowledge and therefore denied.
5. Denied as framed.
6. Denied as framed.7.
CASE NO: 2014-2253-CC-26 04
Defendant admits that same issued a policy of insurance to the named insured,
and the subject policy was in full force and effect on the alleged date of loss outlined in
Plaintiff's Complaint; subject to all the terms and conditions of said policy.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
Without knowledge and therefore denied.
Denied as framed.
Denied as framed, and Defendant demands strict proof thereof.
Denied and Defendant demands strict proof thereof.
DAMAGES FOR NO-FAULT BENEFITS
Denied.
Denied.
Denied.
Denied as framed and Defendant demands strict proof thereof.
Denied and Defendant demands strict proof thereof.
Denied as framed.
All allegations outlined in the wherefore clause of Plaintiff's Complaint are hereby
denied.
Any and all allegations not specifically admitted herein are hereby denied.
1.
AFFIRMATIVE DEFENSES
Any liability of Defendant to the Plaintiff is subject to the terms, conditions,
limitations, endorsements, exclusions and effective dates of any applicable insurance agreement.
2.
Any liability of Defendant to the Plaintiff is subject to the terms, conditions and
limitations of the Florida Motor Vehicle No-Fault Law.CASE NO: 2014-2253-CC-26 04
3. Defendant has paid all benefits reasonably due under any contract of insurance
and the Florida Motor Vehicle No-Fault Law. The dates of service submitted to the Defendant
were paid in accordance with the Fee Schedule.
4. The Defendant asserts that pursuant to Derius vs. Allstate Indem. Co. 723 So.2d
271 (Fla. 4" DCA 1998) and Florida Statute §627.736, it is Plaintiff's burden to prove that the
medical expenses at issue were reasonable, necessary and related to the alleged automobile
accident set forth in the Complaint.
5. The Defendant asserts the defense of tender and payment and/or accord and
satisfaction. The Defendant paid the Plaintiff's claim in full prior to the filing of the subject
lawsuit, pursuant to the Florida PIP Statute (627.736(5)) and the subject insurance policy. In
accordance with said statute and policy provisions, a check was issued and placed in the mail in
accordance with the Mail Box Rule under Fla. Stat. 627.736 for the services rendered.
Defendant will provide a copy of said policy to Plaintiff in the course of discovery.
6. Defendant asserts that the assignment attached to the Complaint is legally
defective and Plaintiff lacks standing to proceed with the instant action.
7. Defendant asserts that the funds available for the payment of all personal injury
benefits related to the subject accident pursuant to Florida Statute 627.736 and the Defendant’s
policy of insurance has been exhausted and the Plaintiff is estopped from seeking any further
payment as it pertains to Plaintiff's medical services and/or treatment related to the subject
accident.
8. Defendant asserts that it is the jury's job to evaluate the reasonableness of a
reimbursement pursuant to Fla. Stat. §627.736(1)(a) and (5)(a)(1). A jury may, after weighing
all the factors in §5(a)(1), find that the reasonable charge should be based upon any of theCASE NO: 2014-2253-CC-26 04
sources referenced in the Defendant’s policy and the PIP Statute — including such diverse sources
as Medicare Part B’s participating provider amount, the Champus/Tricare (military’s insurer)
participating provider rate, Fla. Stat. 627.736(5)(a)(2), or the Florida Worker’s Compensation
reimbursement rate. The amount calculated by Defendant was, in fact, 80% of a reasonable
amount.
9. Per Defendant’s Peer Review and/or Independent Medical Exam of
patient/assignor any further treatment beyond the date of the Peer Review and/or Independent
Medical Exam cut-off date was not reasonable, related or necessary.
10. Plaintiff failed to serve a valid pre-suit demand letter pursuant to Fla. Stat.
627.736(10). Plaintiff is precluded from asserting this action for the underlying benefits.
ll. Any liability of Defendant to the Plaintiff is subject to the terms, conditions,
limitations, endorsements, exclusions and effective dates of any applicable insurance agreement.
Any liability of Defendant to the Plaintiff is subject to the terms, conditions and limitations of
the Florida Motor Vehicle No-Fault Law. Defendant has paid all benefits reasonably due under
any contract of insurance and the Florida Motor Vehicle No-Fault Law. Defendant asserts that
the funds available for the payment of all personal injury benefits related to the subject accident
pursuant to Florida Statute 627.736 and the Defendant’s policy of insurance have/has been
exhausted and the Plaintiff is estopped from seeking any further payment as it pertains to
Plaintiff's medical services and/or treatment related to the subject accident. The Defendant paid
out the full $2,500.00 amount of PIP benefits available for non-emergency medical condition
treatment, thus exhausting benefits for this claim. Plaintiff is therefore estopped from seeking
any further payment as it pertains to Plaintiff's medical services and/or treatment related to the
subject accident.CASE NO: 2014-2253-CC-26 04
12. Plaintiff's alleged assignor did not suffer an Emergency Medical Condition as a
result of the subject accident. As such, Plaintiff is therefore estopped from seeking payment for
the subject medical services and/or treatment at issue in this lawsuit.
13. The dates of service submitted to the Defendant were paid in accordance with the
Fee Schedule and 627.736(5)(a)(3). Defendant made the appropriate Multiple Procedure
Payment Reduction (MPPR) pursuant to the CMS and the Florida Motor Vehicle No-Fault Law.
14, Plaintiff failed to provide the required documentation to support its claim that the
services allegedly rendered were reasonable, necessary and related to the alleged automobile
accident set forth in the Complaint. Plaintiff is precluded from asserting this action for the
underlying benefits.
15, Plaintiff's charges were appropriately applied to the applicable policy
deductible. No further benefits are due or owing. As such, Plaintiff is therefore estopped from
seeking payment for the subject medical services and/or treatment at issue in this lawsuit.
16. Plaintiff failed to lawfully comply with the medical record keeping requirements
of rule 64B2-17.0065. As such, the alleged dates of service are not required to be reimbursed
under Florida No Fault Law.
17. The alleged accident was a low impact accident that occurred in a parking lot,
thus the treatment and billing are excessive. Additionally, based on the low impact of said
accident, the treatment at issue was not reasonable related or necessary.
18. The policy at issue, clearly and unambiguously elected the permissive Medicare
Fee Schedule methodology for calculating reimbursements, based on the language contained
within the A085 endorsement, which has been properly incorporated into the subject policy of
insurance.CASE NO: 2014-2253-CC-26 04
19, Defendant reserves its right to amend its affirmative defenses.
DEMAND FOR TRIAL BY JURY
Defendant demands trial by jury of all issues so triable.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been
furnished via E-Mail on June 9, 2014 to Maria Elena Corredor, Esquire, Attorney for Plaintiff,
Central Therapy Center, Inc. a/a/o Eriche Garcia, service@corredorhusseinilaw.com, (305) 670-
1880/(305) 670-1985 (F).
Law Offices of Neil V. Singh
Attorneys for Defendant
3250 West Commercial Blvd., Suite 220
Fort Lauderdale, FL 33309
(954) 233-9097 (Asst.)/(954) 233-9030 (Direct)
Fax: (866) 841-8921
SERVICE DESIGNATIONS:
Primary: SFPIPHC@Progressive.com
Secondary: RBishop1@Progressive.com
By: /s/ Randall B. Bishop
RANDALL B. BISHOP, ESQUIRE
Florida Bar No. 695424
“Salaried Employees of Progressive Casualty Insurance Company”
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Filing # 14571985 Electronically Filed 06/09/2014 12:39:02 PM IN THE COUNTY COURT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CENTRAL THERAPY CENTER, INC., A/A/O ERICHE GARCIA, Plaintiff, v. CASE NO: 2014-2253-CC-26 04 CIVIL DIVISION PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. / DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, Defendant, PROGRESSIVE SELECT INSURANCE COMPANY, by and through the undersigned counsel, hereby files its Answer and Affirmative Defenses to Plaintiff's Complaint and states as follows: GENERAL ALLEGATIONS 1. Admitted for jurisdictional purposes only. Any and all other allegations are specifically denied. 2. Without knowledge and therefore denied. 3. Admit that Defendant was and is a corporation licensed to transact business in the State of Florida, and maintained offices in Miami-Dade County. 4. Without knowledge and therefore denied. 5. Denied as framed. 6. Denied as framed.7. CASE NO: 2014-2253-CC-26 04 Defendant admits that same issued a policy of insurance to the named insured, and the subject policy was in full force and effect on the alleged date of loss outlined in Plaintiff's Complaint; subject to all the terms and conditions of said policy. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. Without knowledge and therefore denied. Denied as framed. Denied as framed, and Defendant demands strict proof thereof. Denied and Defendant demands strict proof thereof. DAMAGES FOR NO-FAULT BENEFITS Denied. Denied. Denied. Denied as framed and Defendant demands strict proof thereof. Denied and Defendant demands strict proof thereof. Denied as framed. All allegations outlined in the wherefore clause of Plaintiff's Complaint are hereby denied. Any and all allegations not specifically admitted herein are hereby denied. 1. AFFIRMATIVE DEFENSES Any liability of Defendant to the Plaintiff is subject to the terms, conditions, limitations, endorsements, exclusions and effective dates of any applicable insurance agreement. 2. Any liability of Defendant to the Plaintiff is subject to the terms, conditions and limitations of the Florida Motor Vehicle No-Fault Law.CASE NO: 2014-2253-CC-26 04 3. Defendant has paid all benefits reasonably due under any contract of insurance and the Florida Motor Vehicle No-Fault Law. The dates of service submitted to the Defendant were paid in accordance with the Fee Schedule. 4. The Defendant asserts that pursuant to Derius vs. Allstate Indem. Co. 723 So.2d 271 (Fla. 4" DCA 1998) and Florida Statute §627.736, it is Plaintiff's burden to prove that the medical expenses at issue were reasonable, necessary and related to the alleged automobile accident set forth in the Complaint. 5. The Defendant asserts the defense of tender and payment and/or accord and satisfaction. The Defendant paid the Plaintiff's claim in full prior to the filing of the subject lawsuit, pursuant to the Florida PIP Statute (627.736(5)) and the subject insurance policy. In accordance with said statute and policy provisions, a check was issued and placed in the mail in accordance with the Mail Box Rule under Fla. Stat. 627.736 for the services rendered. Defendant will provide a copy of said policy to Plaintiff in the course of discovery. 6. Defendant asserts that the assignment attached to the Complaint is legally defective and Plaintiff lacks standing to proceed with the instant action. 7. Defendant asserts that the funds available for the payment of all personal injury benefits related to the subject accident pursuant to Florida Statute 627.736 and the Defendant’s policy of insurance has been exhausted and the Plaintiff is estopped from seeking any further payment as it pertains to Plaintiff's medical services and/or treatment related to the subject accident. 8. Defendant asserts that it is the jury's job to evaluate the reasonableness of a reimbursement pursuant to Fla. Stat. §627.736(1)(a) and (5)(a)(1). A jury may, after weighing all the factors in §5(a)(1), find that the reasonable charge should be based upon any of theCASE NO: 2014-2253-CC-26 04 sources referenced in the Defendant’s policy and the PIP Statute — including such diverse sources as Medicare Part B’s participating provider amount, the Champus/Tricare (military’s insurer) participating provider rate, Fla. Stat. 627.736(5)(a)(2), or the Florida Worker’s Compensation reimbursement rate. The amount calculated by Defendant was, in fact, 80% of a reasonable amount. 9. Per Defendant’s Peer Review and/or Independent Medical Exam of patient/assignor any further treatment beyond the date of the Peer Review and/or Independent Medical Exam cut-off date was not reasonable, related or necessary. 10. Plaintiff failed to serve a valid pre-suit demand letter pursuant to Fla. Stat. 627.736(10). Plaintiff is precluded from asserting this action for the underlying benefits. ll. Any liability of Defendant to the Plaintiff is subject to the terms, conditions, limitations, endorsements, exclusions and effective dates of any applicable insurance agreement. Any liability of Defendant to the Plaintiff is subject to the terms, conditions and limitations of the Florida Motor Vehicle No-Fault Law. Defendant has paid all benefits reasonably due under any contract of insurance and the Florida Motor Vehicle No-Fault Law. Defendant asserts that the funds available for the payment of all personal injury benefits related to the subject accident pursuant to Florida Statute 627.736 and the Defendant’s policy of insurance have/has been exhausted and the Plaintiff is estopped from seeking any further payment as it pertains to Plaintiff's medical services and/or treatment related to the subject accident. The Defendant paid out the full $2,500.00 amount of PIP benefits available for non-emergency medical condition treatment, thus exhausting benefits for this claim. Plaintiff is therefore estopped from seeking any further payment as it pertains to Plaintiff's medical services and/or treatment related to the subject accident.CASE NO: 2014-2253-CC-26 04 12. Plaintiff's alleged assignor did not suffer an Emergency Medical Condition as a result of the subject accident. As such, Plaintiff is therefore estopped from seeking payment for the subject medical services and/or treatment at issue in this lawsuit. 13. The dates of service submitted to the Defendant were paid in accordance with the Fee Schedule and 627.736(5)(a)(3). Defendant made the appropriate Multiple Procedure Payment Reduction (MPPR) pursuant to the CMS and the Florida Motor Vehicle No-Fault Law. 14, Plaintiff failed to provide the required documentation to support its claim that the services allegedly rendered were reasonable, necessary and related to the alleged automobile accident set forth in the Complaint. Plaintiff is precluded from asserting this action for the underlying benefits. 15, Plaintiff's charges were appropriately applied to the applicable policy deductible. No further benefits are due or owing. As such, Plaintiff is therefore estopped from seeking payment for the subject medical services and/or treatment at issue in this lawsuit. 16. Plaintiff failed to lawfully comply with the medical record keeping requirements of rule 64B2-17.0065. As such, the alleged dates of service are not required to be reimbursed under Florida No Fault Law. 17. The alleged accident was a low impact accident that occurred in a parking lot, thus the treatment and billing are excessive. Additionally, based on the low impact of said accident, the treatment at issue was not reasonable related or necessary. 18. The policy at issue, clearly and unambiguously elected the permissive Medicare Fee Schedule methodology for calculating reimbursements, based on the language contained within the A085 endorsement, which has been properly incorporated into the subject policy of insurance.CASE NO: 2014-2253-CC-26 04 19, Defendant reserves its right to amend its affirmative defenses. DEMAND FOR TRIAL BY JURY Defendant demands trial by jury of all issues so triable. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished via E-Mail on June 9, 2014 to Maria Elena Corredor, Esquire, Attorney for Plaintiff, Central Therapy Center, Inc. a/a/o Eriche Garcia, service@corredorhusseinilaw.com, (305) 670- 1880/(305) 670-1985 (F). Law Offices of Neil V. Singh Attorneys for Defendant 3250 West Commercial Blvd., Suite 220 Fort Lauderdale, FL 33309 (954) 233-9097 (Asst.)/(954) 233-9030 (Direct) Fax: (866) 841-8921 SERVICE DESIGNATIONS: Primary: SFPIPHC@Progressive.com Secondary: RBishop1@Progressive.com By: /s/ Randall B. Bishop RANDALL B. BISHOP, ESQUIRE Florida Bar No. 695424 “Salaried Employees of Progressive Casualty Insurance Company”