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Florida Fifth DCA joins Eleventh Circuit, Third and Fourth DCAs in holding that PIP benefits are limited to $2,500 in the absence of an affirmative determination by a qualifying health care provider that the patient had an emergency medical condition

On June 4, 2021, in Depositors Insurance Company v. Pasco-Pinellas Hillsborough Community Health System, No. 5D21-71, the Florida Fifth DCA ruled that the benefits payable under a personal injury protection (“PIP”) policy were limited to $2,500 under Fla. Stat. 627.736 because no physician, dentist, or advanced registered nurse practitioner affirmatively determined that the insured had an “emergency medical condition,” which would have triggered entitlement to the higher PIP limit of $10,000. The insurance company had denied the insured the benefit of the higher $10,000 limit after receiving no response from the hospital to a written request under section 627.736(6)(b for a determination as to whether the insured had suffered an emergency condition resulting from her motor vehicle accident. After receiving an assignment of the insured’s rights under the policy, the hospital had brought the lawsuit against the insurance company claiming breach of contract to recover the outstanding balance for the insured’s post-accident ER visit. The hospital argued that the insurance company could not limit the benefits to $2,500 because there had been no affirmative determination by aphysician, dentist, or advanced registered nurse practitioner that the insured did not have an emergency condition, relying on § 627.736(1)(a)4, which states that a PIP policy can limit reimbursement to $2,500 if a [physician, dentist, or advanced registered nurse practitioner] determines that the injured person did not have an emergency medical condition. However, the Fifth DCA sided with decisions by the Eleventh Circuit Court of Appeals and the Third and Fourth DCAs which have allowed insurance companies to cap PIP benefits at $2,500 unless there is an affirmative determination by aphysician, dentist, or advanced registered nurse practitioner that there was in fact an emergency medical condition. These cases all rely on § 627.736(1)(a)4, which provides that the $10,000 cap is applicable if a physician, dentist, or advanced registered nurse practitioner has determined that the injured person had an emergency medical condition. See Progressive Am. Ins. v. Eduardo J. Garrido D.C. P.A., 211 So. 3d 1086, 1093 (Fla. 3d DCA 2017) (holding that when no emergency medical condition diagnosis has been provided by an authorized medical provider as required by section 627.736(1)(a)3., the available PIP medical benefits are limited to $2,500); Med. Ctr. of Palm Beaches v. USAA Cas. Ins., 202 So. 3d 88, 89 (Fla. 4th DCA 2016) (“Further, we find that if either there is no determination of whether the insured has an emergency medical condition or there has been a determination that the insured does not have an emergency medical condition, then the [PIP] benefits would be limited to $2,500.”); Robbins v. Garrison Prop. & Cas. Ins., 809 F.3d 583, 588 (11th Cir. 2015) (holding that where there is no determination by one of the medical providers listed in section 627.736(1)(a)3. that the injured person suffered an emergency medical condition, section 627.736 “limits an insurer’s obligation to provide personal injury protection benefits to $2,500”).

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