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Fifth District Holds Emergency Service Providers' Claims Are Not Prioritized For Payment Under the No-Fault Statute Over Other Non-Emergency Providers' Claims Received The Same Day

June 22, 2022

Michael Clarke and Jennifer Emerson of our Tampa office obtained a reversal of summary judgments in favor of an emergency medical provider in Progressive Select Insurance Co. v. Emergency Physicians, Inc. d/b/a Emergency Resources Group a/a/o Archer, 5D21-967 (Fla. 5th DCA June 17, 2022) and Progressive American Insurance Co. v. Emergency Physicians, Inc. d/b/a Emergency Resources Group a/a/o Sanders, 5D21-968 (Fla. 5th DCA June 17, 2022).  In the consolidated appeals, the Fifth District considered the issue of whether under Florida’s No-Fault law, when multiple bills are received by a PIP insurer on the same day from both emergency service and non-emergency service providers, without any evidence establishing a precise order of receipt, must the insurer apply the non-emergency provider’s bill to the deductible first, thereby prioritizing the full payment of the emergency provider’s bill?  In both cases, Progressive processed the emergency provider’s bill first under the deductible, resulting in a limited payment to the provider in Archer, and no payment in Sanders. The Fifth District reversed holding that where the bills are received on the same day, sections 627.736(4)(c), 627.739(2), and its opinion in Mercury Ins. Co. of Florida v. Emergency Physicians of Central Fla., LLP, 182 So. 3d 661 (Fla. 5th DCA 2015), allow for the deductible to be applied to 100 percent of the bills submitted with no distinction between emergency and non-emergency providers. Accordingly, there is no legal basis to direct a No-Fault insurer to establish a “precise time of day” or the exact order of mailing, in applying the deductible.

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