On January 31, 2014 a
Motion-Secondary
was filed
involving a dispute between
and
in the District Court of Pinellas County.
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***ELECTRONICALLY FILED 3/28/2014 2:43:04 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
Filing # 11884448 Electronically Filed 03/28/2014 02:43:04 PM.
IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
SMALL CLAIMS DIVISION
MRI ASSOCIATES OF PALM HARBOR, INC.
D/B/A PALM HARBOR MRI A/A/O.
JENNIFER KNUTSON
Plaintiff,
Vs. Case No.: 14-000735-SC North
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
Defendant.
PLAINTIFFF’S REPLY TO DEFENDANT’S AFFIRMATIVE DEFENSES
AND MOTION TO STRIKE
COMES NOW, the Plaintiff, by and through the undersigned attorney and hereby files
this Reply to Defendant’s affirmative defenses by denying each and every allegation contained
therein and leaves the Defendant to their proof of same. Said Reply is in response to the Answer
and Affirmative Defenses filed by the Defendant on March 27, 2014.
Motion to Strike
Plaintiff now moves this Honorable court to strike the following affirmative defenses and
in support thereof states as follows:
1. Affirmative Defense #1 ought to be stricken because Plaintiff submitted a timely
demand letter, within the requirement of s. 627.736(10), of which Defendant acknowledged the
receipt thereof. A copy of the demand letter was attached to the complaint. Defendant’s
affirmative defense fails to state how Plaintiff did not comply with the referenced insurancepolicy provision requiring pre-suit notice of intent to initiate litigation and is nothing more than a
blanket, unsupported statement of non-compliance.
2. Affirmative Defense #2 ought to be stricken because Defendant failed to prove
the requirements of accord and satisfaction. An accord and satisfaction results only when the
creditor accepts payment tendered on the express condition that its receipt is deemed to be a
v. Schocoff, 725 So.2d 454
complete satisfaction of a disputed issuc. St. Mary's Hospital. Inc.
(Fla. 4th DCA 1999). The affirmative defense of accord and satisfaction requires proof of a
preexisting dispute as to the nature and extent of the obligation between parties, their mutual
intent to effect settlement of that dispute by superseding agreement, and the obligor's subsequent
tender and obligee's acceptance of performance of new agreement in full. satisfaction and
discharge of prior disputed obligation. Chassan Professional Wallcovering v. Frankel, 608 So.2d
91 (Fla. 4th DCA 1992). There must be unequivocal evidence that a dispute existed prior to the
issuance of the payment by the Defendant. San Hueza v. National Foundation Life Ins. Co., 545
So.2d 321 (Fla. 3d DCA 1989) (when insurer issued checks for payment of medical services in
an amount for which there was no real dispute so that there was nothing to be compromised, the
defense of accord and satisfaction fails). Defendant is hard-pressed to assert this affirmative
defense especially because no payment was made on subject dates of service; therefore no accord
and satisfaction can be said to have resulted.
3. Affirmative Defense #3 ought to be stricken because Plaintiff is without any
knowledge of any requests made to the referring physician for the information sought in Fla.
Stat. 627.736(6)(b). Defendant’s affirmative defense serves only to complicate a rather
uncomplicated issue of simple nonpayment.4. Affirmative Defense #4 ought to be stricken because Defendant fails to state how
and to what extent Plaintiff failed to place Defendant on notice of covered loss. Defendant
received a notice of initiation of treatment and HCFA filings. Furthermore, Defendant generated
an Explanation of Benefits and provided same to Plaintiff, so clearly Defendant received notice
of this loss.
5. Affirmative Defense #5 ought to be stricken because issues of unbundling and/or
upcoding are clearly inapplicable in the instant case as it appears from Defendant’s EOBs that
payment was denied on the basis of a peer review and/or independent medical examination.
6. Affirmative Defense #6 ought to be stricken because Plaintiff attached a valid
assignment of benefits to both the presuit demand letter and the Complaint in this action.
Moreover, Defendant has no standing to challenge the validity the assignment of benefits
between the Plaintiff and Ms. O’Neal. See Progressive Express Ins. Co., v. McGrath Community
Chiropractic, 913 So. 2d 1281 (Fla. 2d DCA 2005); Advanced MRI Diagnostics v. State Farm
Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 422a (Fla. 4" Cir. Dec. 13. 2012); and Digital
Medical Diagnostics y. Allstate, 15 Fla. .. Weekly Supp. 1147b (Fla. 11" Cir. Oct. 2, 2008).
Defendant’s affirmative defense serves only to complicate a rather uncomplicated issue of simple
nonpayment.
7. Affirmative Defense #7 ought to be stricken because it is without any evidentiary
basis. Plaintiff's charges would undoubtedly be reimbursed against the Medicare Participating
Physician’s Fee Schedule for the applicable codes; and therefore the reasonableness of Plaintiff’s
charges, before any fee schedule reduction is considered, is irrelevant and serves only to
complicate a rather uncomplicated issue of non-payment. Furthermore, Defendant is without anybasis to claim no further amounts are due because no partial payments were made, and
Defendant is also without any basis to claim the Plaintiff did not render the entirety of services.
8. Affirmative Defense #8 ought to be stricken because Plaintiff is not precluded
from recovery in the event of exhaustion of benefits if it is proven Defendant acted in bad faith in
processing bills in queue.
WHEREFORE, Plaintiff requests the Honorable Court enter an Order striking the above-
listed affirmative defenses for the reasons stated above.
CERTIFICATE OF SERVICE
J HEREBY CERTIFY that a true and correct copy of the foregoing has been served via
Ae
facsimile transmission — this ‘txt day of March, 2014 to Robert H. Oxendine, Esquire,
eservice@oxendine.law.com, 14428 Bruce B. Downs Blyd,“fampa, F46rida 33613.
Vy
OMY Py
VSO9T
for STEPHEN BAARKAS, ESQ
FBN: 84160
MATTHEW DOLMAN, ESQ
FBN: 0729221
DOLMAN LAW GROUP.
800 N. Belcher Road
Clearwater, FL 33765
Telephone: (727) 451-6900
Facsimile: (727) 451-6907
service@dolmanlaw.com
Attorneys for Plaintiff
Document Filed Date
March 28, 2014
Case Filing Date
January 31, 2014
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***ELECTRONICALLY FILED 3/28/2014 2:43:04 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY*** Filing # 11884448 Electronically Filed 03/28/2014 02:43:04 PM. IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA SMALL CLAIMS DIVISION MRI ASSOCIATES OF PALM HARBOR, INC. D/B/A PALM HARBOR MRI A/A/O. JENNIFER KNUTSON Plaintiff, Vs. Case No.: 14-000735-SC North STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendant. PLAINTIFFF’S REPLY TO DEFENDANT’S AFFIRMATIVE DEFENSES AND MOTION TO STRIKE COMES NOW, the Plaintiff, by and through the undersigned attorney and hereby files this Reply to Defendant’s affirmative defenses by denying each and every allegation contained therein and leaves the Defendant to their proof of same. Said Reply is in response to the Answer and Affirmative Defenses filed by the Defendant on March 27, 2014. Motion to Strike Plaintiff now moves this Honorable court to strike the following affirmative defenses and in support thereof states as follows: 1. Affirmative Defense #1 ought to be stricken because Plaintiff submitted a timely demand letter, within the requirement of s. 627.736(10), of which Defendant acknowledged the receipt thereof. A copy of the demand letter was attached to the complaint. Defendant’s affirmative defense fails to state how Plaintiff did not comply with the referenced insurancepolicy provision requiring pre-suit notice of intent to initiate litigation and is nothing more than a blanket, unsupported statement of non-compliance. 2. Affirmative Defense #2 ought to be stricken because Defendant failed to prove the requirements of accord and satisfaction. An accord and satisfaction results only when the creditor accepts payment tendered on the express condition that its receipt is deemed to be a v. Schocoff, 725 So.2d 454 complete satisfaction of a disputed issuc. St. Mary's Hospital. Inc. (Fla. 4th DCA 1999). The affirmative defense of accord and satisfaction requires proof of a preexisting dispute as to the nature and extent of the obligation between parties, their mutual intent to effect settlement of that dispute by superseding agreement, and the obligor's subsequent tender and obligee's acceptance of performance of new agreement in full. satisfaction and discharge of prior disputed obligation. Chassan Professional Wallcovering v. Frankel, 608 So.2d 91 (Fla. 4th DCA 1992). There must be unequivocal evidence that a dispute existed prior to the issuance of the payment by the Defendant. San Hueza v. National Foundation Life Ins. Co., 545 So.2d 321 (Fla. 3d DCA 1989) (when insurer issued checks for payment of medical services in an amount for which there was no real dispute so that there was nothing to be compromised, the defense of accord and satisfaction fails). Defendant is hard-pressed to assert this affirmative defense especially because no payment was made on subject dates of service; therefore no accord and satisfaction can be said to have resulted. 3. Affirmative Defense #3 ought to be stricken because Plaintiff is without any knowledge of any requests made to the referring physician for the information sought in Fla. Stat. 627.736(6)(b). Defendant’s affirmative defense serves only to complicate a rather uncomplicated issue of simple nonpayment.4. Affirmative Defense #4 ought to be stricken because Defendant fails to state how and to what extent Plaintiff failed to place Defendant on notice of covered loss. Defendant received a notice of initiation of treatment and HCFA filings. Furthermore, Defendant generated an Explanation of Benefits and provided same to Plaintiff, so clearly Defendant received notice of this loss. 5. Affirmative Defense #5 ought to be stricken because issues of unbundling and/or upcoding are clearly inapplicable in the instant case as it appears from Defendant’s EOBs that payment was denied on the basis of a peer review and/or independent medical examination. 6. Affirmative Defense #6 ought to be stricken because Plaintiff attached a valid assignment of benefits to both the presuit demand letter and the Complaint in this action. Moreover, Defendant has no standing to challenge the validity the assignment of benefits between the Plaintiff and Ms. O’Neal. See Progressive Express Ins. Co., v. McGrath Community Chiropractic, 913 So. 2d 1281 (Fla. 2d DCA 2005); Advanced MRI Diagnostics v. State Farm Mut. Auto. Ins. Co., 20 Fla. L. Weekly Supp. 422a (Fla. 4" Cir. Dec. 13. 2012); and Digital Medical Diagnostics y. Allstate, 15 Fla. .. Weekly Supp. 1147b (Fla. 11" Cir. Oct. 2, 2008). Defendant’s affirmative defense serves only to complicate a rather uncomplicated issue of simple nonpayment. 7. Affirmative Defense #7 ought to be stricken because it is without any evidentiary basis. Plaintiff's charges would undoubtedly be reimbursed against the Medicare Participating Physician’s Fee Schedule for the applicable codes; and therefore the reasonableness of Plaintiff’s charges, before any fee schedule reduction is considered, is irrelevant and serves only to complicate a rather uncomplicated issue of non-payment. Furthermore, Defendant is without anybasis to claim no further amounts are due because no partial payments were made, and Defendant is also without any basis to claim the Plaintiff did not render the entirety of services. 8. Affirmative Defense #8 ought to be stricken because Plaintiff is not precluded from recovery in the event of exhaustion of benefits if it is proven Defendant acted in bad faith in processing bills in queue. WHEREFORE, Plaintiff requests the Honorable Court enter an Order striking the above- listed affirmative defenses for the reasons stated above. CERTIFICATE OF SERVICE J HEREBY CERTIFY that a true and correct copy of the foregoing has been served via Ae facsimile transmission — this ‘txt day of March, 2014 to Robert H. Oxendine, Esquire, eservice@oxendine.law.com, 14428 Bruce B. Downs Blyd,“fampa, F46rida 33613. Vy OMY Py VSO9T for STEPHEN BAARKAS, ESQ FBN: 84160 MATTHEW DOLMAN, ESQ FBN: 0729221 DOLMAN LAW GROUP. 800 N. Belcher Road Clearwater, FL 33765 Telephone: (727) 451-6900 Facsimile: (727) 451-6907 service@dolmanlaw.com Attorneys for Plaintiff