IN ORDER TO SATISFY NOTICE REQUIREMENTS OF NICA STATUTE, BOTH PARTICIPATING PHYSICIANS, AND HOSPITALS WITH PARTICIPATING PHYSICIANS ON STAFF MUST PROVIDE PATIENTS WITH NOTICE OF PARTICIPATION IN PLAN
Florida Birth Related Neurological Injury Compensation Association v. Department of Administrative Hearings, 35 Fla. L. Weekly S40 (Fla. January 14, 2010):
In answering a certified question of great public importance, the court held that a physician’s pre-delivery notice to his or her patient of the plan and his or her participation in the plan is not enough to satisfy the requirements of §766.316, Florida Statute, if the hospital where the delivery took place failed to provide notice of any kind. The court quashed the decisions in All Children’s Hospital v. Department of Administrative Hearings and Bayfront Medical Center v. Florida Birth Related Neurological Injury Compensation Association in rendering its decision.
THE FEDERAL AVIATION ACT PREEMPTS FLORIDA’S DANGEROUS INSTRUMENTALITY LAW, AS IT WOULD APPLY TO A CLAIM FOR PURE VICARIOUS LIABILITY AGAINST THE OWNER OF A PRIVATE PLANE
Vreeland v. Martinez, 35 Fla. L. Weekly D115 (Fla. 2nd DCA January 5, 2010):
The personal representative of a passenger killed in a private airplane crash sued the owner of the plane, the company to which the owner had leased the plane, and the pilot’s estate. This appeal involved only the claims against the owner.
The trial court granted summary judgment under the Federal Aviation Act 49 U.S.C. §44112. It found that section preempted Florida’s dangerous instrumentality law, as it related to owners or leasors of aircraft, because the purpose of the federal statute is to shield an owner from liability of the negligence of others, when the aircraft is not in the owner’s or leasor’s possession or control.
However, the Second District reversed the summary judgment on the issue of the owner’s negligent maintenance and inspection of the aircraft (before it leased the plane). Because that statute does not preempt Florida negligence law, the defendant was not entitled to summary judgment on that count.
COURT ADDRESSES AHLBORN AND MEDICAID LIENS – FINDS UNDISPUTED COST OF MEDICAL CARE PROVIDED BY MEDICAID DOES NOT EXCEED 50% AND THUS AHCA IS ENTITLED TO FULL SATISFACTION OF LIEN
Russell v. Agency for Healthcare Administration, 35 Fla. L. Weekly D118 (Fla. 2nd DCA January 6, 2010).
The plaintiff in a medical malpractice case challenged the court’s ruling, ordering full satisfaction of a Medicaid lien from the proceeds of the settlement. The case was settled for 3 million dollars, and the lien asserted by ACHA was for $221,000. The settlement agreement contained no allocation of the amounts recovered for the various elements of damages.
The court noted that under §409.910(11)(f)(1), AHCA is entitled to full satisfaction of its lien as long as that amount it does not exceed 50% of the amount recovered in the settlement.
Plaintiff argued that the Ahlborn decision limited the lien AHCA could take. However, the court observed that Ahlborn does not establish a rule of law as to a formula to determine the portion of a settlement attributable to medical expenses. It also observed that in Ahlborn, the parties stipulated as to the value of the claim, and further stipulated that only 1/6th of the claim ($35,000) represented compensation for medical expenses.
Central to the Ahlborn court’s reasoning was the State’s stipulation concerning the portion of settlement attributable to medical expenses, and on the basis of that stipulation, the court reached its conclusion that the State’s lien exceeded that portion of the settlement that represented payments for medical care.
The court then observed that in Florida, a Medicaid recipient who settles a tort claim with a third party, does so against the backdrop of a 50% allocation rule set forth in 409.910(11)(f). Because the plaintiff failed to establish any basis for concluding that the lien asserted by AHCA exceeded a portion of the settlement meant to compensate the recipient for damages distinct from medical costs, it was valid.
The Second District then admonished that unless parties agree to a figure for the cost of medical expenses, a unilateral determination in the settlement agreement is not unavailing. The court cited to Smith v. ACHA, to remind us that the Ahlborn decision did not establish a rule of law on the formula used to pay back medical expenses from a settlement.
Note: At least it’s good to know that Medicaid cannot claim a lien beyond 50% of the settlement to pay back the total amount of medical expenses provided.
TRIAL COURT PROPERLY DETERMINED THAT PROVISION EXCLUDING COVERAGE FOR “ANY BODILY INJURY TO ANY INSURED OR ANY MEMBER OF AN INSURED’S FAMILY RESIDING IN THE INSURED’S HOUSEHOLD” WAS AMBIGUOUS
State Farm v. Menendez, 35 Fla. L. Weekly D133 (Fla. 3rd DCA January 6, 2010):
State Farm’s named insured permitted her granddaughter to use her vehicle. While operating the vehicle, the granddaughter negligently collided with another car, resulting in injuries to herself, her parents, and the named insured. When the accident occurred, the named insured’s granddaughter was living with her parents, and the named insured was living at a separate address.
When the parents filed suit against the named insured to recover damages for their injuries under the policy, State Farm denied coverage based on the household exclusion, which provided there was no coverage for “any insured or any member of an insured’s family residing in the insured’s household.”
Because the named insured’s granddaughter was a permissive user of the insured vehicle, State Farm asserted she was also an “insured” also under the policy. Since the named insured’s granddaughter and her parents resided in the same house, State Farm argued there was no coverage based on the exclusion.
Plaintiffs claimed that the phrase “the insured” referred to the named insured only, and that the definition did not include permissive users of the insured.
Referring to the definitional section of the policy for the definition of “insured,” “you or your” was defined as the named insured shown on the declaration page, and it went on to also state that any person using “your car” fell within the household exclusion. Because there was an ambiguity about whether the parents fell within the exclusion, the court found there was coverage.
ERROR TO DENY MOTION TO QUASH SERVICE OF PROCESS WHERE PLAINTIFF DID NOT STRICTLY COMPLY WITH REQUIREMENTS OF §48.161
Cohen v. Aponte, 35 Fla. L. Weekly D137 (Fla. 4th DCA January 6, 2010):
Plaintiff was unable to locate the defendants. He moved for an extension to serve them. The plaintiff served the employer defendant, but was unable to locate the employee defendant.
The plaintiff then filed an amended complaint alleging that numerous attempts were made locate and serve the individual defendant, but it appeared he was no longer in the jurisdiction or was concealing his whereabouts. The complaint further alleged that plaintiff conducted a diligent search, and was serving a copy of the complaint and summons on the Secretary of State under §48.161.
Because plaintiff ultimately failed to comply with two of the three requirements ((1) notice by registered or certified mail; (2) filing the defendant’s return receipt; and (3) filing an affidavit of compliance on or before the return day of the processor within such time as the court allows) of the pertinent statute, the court held service was invalid. This case provides a very helpful “how to” on substituting service if anyone needs such guidance.
DURABLE POWER OF ATTORNEY DECEDENT’S DAUGHTER ACTED UNDER IN EXECUTING DECEDENT’S NURSING HOME ADMISSION CONTRACT WAS BROAD ENOUGH TO AUTHORIZE BINDING ARBITRATION, EVEN THOUGH IT DID NOT SPECIFICALLY REFERENCE ARBITRATION AGREEMENTS
Estate of Smith v. Southland Suites of Ormond Beach, 35 Fla. L. Weekly D145 (Fla. 5th DCA January 8, 2010).
INSURED CANNOT CIRCUMVENT PAYMENT PROCEDURES OUTLINED IN §627.736(5)(C)(1) AFTER HEALTH INSURER PLACED LIEN ON HER SETTLEMENT PROCEEDS, BY SEEKING REIMBURSEMENT FROM PIP INSURER THREE YEARS AFTER ACCIDENT
State Farm v. Pressley, 35 Fla. L. Weekly D150 (Fla. 1st DCA January 12, 2010):
State Farm moved for summary judgment on a claim for PIP benefits. After her accident, the insured did not seek medical treatment for seven months, at which time her health carrier paid for her medical treatment. The health carrier then asserted a lien on the settlement proceeds. Three years after the accident, plaintiff filed a complaint against State Farm for unpaid and overdue PIP benefits. In essence, she sought reimbursement from State Farm for the health insurance lien asserted by the health carrier.
State Farm moved for summary judgment arguing that none of the bills were submitted in accordance with the PIP statute or on the proper forms. Plaintiff countered that it was impractical to subject insureds to the requirements of those statutes, and cited cases to support her argument that reimbursement of the health insurance lien was permissible under the PIP statute.
The court reversed the trial court’s decision to deny State Farm’s motion for summary judgment. It found that State Farm owed no PIP benefits because neither plaintiff nor her medical providers’ complied with the sections of statute 627.736(5)(c)(a) and 627.736(5)(d). It said that the PIP statute outlines the procedure for securing payment of medical expenses with a time line and instructions. There is a time limit and specific directives on how to submit bills.
The court admonished that the plaintiff could not circumvent the payment by procedures outlined in the statute after her health insurer placed a lien on her settlement proceeds, seeking reimbursement from the PIP carrier three years after the accident. Allowing her to do so would render the statutory time limitations in the statute useless. Had the plaintiff promptly notified State Farm of the accident and allowed the medical providers to file timely claims, the situation could have been avoided.
The court rejected the cases cited by the plaintiff which allowed submission of liens to the PIP carrier after the fact, noting that both decisions were rendered before the current PIP law went into effect.
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