May 31, 2023

Kelley Kronenberg Secured $500.00 Settlement in Case Presenting Exposure of $25,000.00

After ten months of litigation, Kelley Kronenberg Attorney, Catherine Arpen, successfully obtained a settlement agreement for only $500.00, shielding our client from approximately $25,000.00 in exposure.  

In this case, Plaintiff filed a breach of contract action seeking damages for Defendant’s alleged failure to pay PIP benefits. Defendant’s defenses, amongst others, were (1) untimely submission of the claim beyond thirty-five days and (2) failure to respond to Defendant’s request for additional information pursuant to 627.736(6)(b).

Our defense of this action began with rigorous discovery. On behalf of our client, Ms. Arpen served Plaintiff with discovery requesting proof of timely submission for the subject date of service, and Plaintiff failed to respond. After two emails, a Good Faith letter, and multiple requests for telephone conferences, Ms. Arpen filed Defendant’s Motion to Compel and, thereafter, attempted three times to coordinate a hearing. It was only after these efforts went completely without response that Ms. Arpen unilaterally set the hearing.

Four weeks prior to trial, Plaintiff finally responded with the alleged proof of timely submission. Plaintiff then offered to dismiss the lawsuit on the premise that, “the provisions of Fla. Stat. 627.736(6)(b) were not applicable to a PIP claim when the date of receipt was in dispute.” This posed a predicament, as an agreement to the same would have entitled Plaintiff to attorney’s fees, and potentially set Defendant up to either render an inadvertent confession or posture Plaintiff for another breach of contract action.  

On behalf of our client, Ms. Arpen proposed Plaintiff’s alleged proof of timely mailing was not satisfactory, thus the bill remained unpayable. Ms. Arpen raised the holding in Garrison Property & Casualty Ins. Co. v. Aventura Orthopedicare Center, P.A., 323 So. 3d 760 (Fla. 4th DCA 2021), wherein the Court found the lawsuit premature because the provider failed to respond to the insurer’s request for information pursuant to s. 627.736(6)(b). In its opinion, the Court stated: “Section 627.736(6)(b) is mandatory in nature and does not contain an exception for a medical provider’s assertions that the EMC determination had already been provided to the insurance company.” Id 

Drawing a parallel to this holding, Ms. Arpen asserted a medical provider cannot assert the bill was provided timely; it must provide the documents requested, with a sworn statement. Filing a lawsuit without providing this information makes the lawsuit, as well as the pre-suit demand letter, premature. In further support, Ms. Arpen pointed to the opinion from Florida’s Fifth District Court of Appeals in State Farm Florida Ins. Co. v. Lorenzo, 969 So. 2d 393 (Fla. 5d DCA 2007) stating the Confession of Judgment Doctrine only applies where the insurer has denied benefits that the insured was entitlement to, forcing the insured to file suit, resulting in the insurer’s change of heart and payment before judgment. Id. at 397.  

Relying on these opinions, Ms. Arpen argued Plaintiff did not need to file a lawsuit; Plaintiff only needed to respond to the 6B request and, if acceptable, the insurer would have paid the claim. For this reason, Plaintiff was not going to win entitlement to fees. 

After rejecting Plaintiff’s offer and delineating the basis for the same, our client offered $500.00, an offer quickly accepted by Plaintiff.  

Through the determined efforts of Ms. Arpen, our client averted substantial claim exposure, as well as attorney’s fees and costs. Ms. Arpen’s aggressive discovery efforts and iron clad knowledge of Florida’s rules of civil procedure and administrative code paved the way for a de minimis settlement.