Knowing your no fault benefits.

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Chris:

We’re honored today to have attorney Phillip Friedman with us. Phillip is the owner of FL Legal Group, and he is one of the foremost authorities on PIP law in Florida among other things. Phil, welcome to the show.

Phillip:

Good afternoon, Chris. Thank you.

Chris:

And thank you for being here. Tell us a little bit about yourself, a little bit about your background.

Phillip:

I’ve been in Florida now just about 20 years. I left school. I went into the restaurant industry and did that for a number of years. Thought I could do better and help other folks, so I went to law school. Ended up meeting somebody from Florida, which brought me here to Tampa, and here we are 20 years later. Not the area of law I thought I was going to go into, but as with a lot of things in life, you start with something, you start getting good at it, and here’s where we’re at and this is what we do.

Chris:

I understand.

Phillip:

We primarily focus on assisting individuals and medical providers on getting the proper reimbursement under Florida’s PIP law, which is very unique to Florida.

Chris:

It is indeed. Tell us, what exactly is PIP?

Phillip: It is personal injury protection, also known as no fault benefits. Florida is a no fault state. That means that when you get in a car crash, the first $10,000 worth of your medical bills, your lost wages, your out-of-pocket expenses, replacement services are to be paid for by your own insurance company, regardless of who’s at fault in the crash. And technically, it’s supposed to reduce the amount of litigation that goes on in Florida for small crashes where people are not substantially injured. You get your medical bills paid, and in the words of the Supreme Court, you virtually, swiftly and automatically get on about your life without having to deal with the hassle of a lawsuit and everything else. Of course, that means you can’t recover from the other side when you do that. And so if your injuries are not permanent, you get your bills paid and you move on and that’s that. That’s the idea of PIP.

Chris:

That’s PIP’s goal is to get the medical bills paid quickly. I’ve said this before in my presentation that the only duty a person really has is to get themselves better under the law, [crosstalk 00:02:49]-

Phillip:

A lot of folks, they see billboards around and they think “Car crash, oh, it’s all about money,” and that’s really not the case at all. You get in a car crash, we hope that everybody’s okay. And the more modern your cars are, the more modern the roadways that you’re on now, you can have substantial crashes and people can walk away from that without injury. That of course is the goal. That’s what we want to see. When people build cars, we want them to build better cars for safety purposes. When we build roadways, we want to see them build better roadways with good lighting and markers and directionals and everything else so that people don’t get in crashes, but if you do, that you can be as safe as possible. And if you are injured, the injuries hopefully are minor, but yeah, that’s your number one job after a car crash is to get yourself better.

Phillip:

Part of PIP after 2013 is you have to treat within 14 days, so get some treatment right away and hopefully you get better and you can get back on your feet swiftly and automatically, like the Supreme Court says, with undue interruption to your life. You get your wages paid 60% under PIP. You get your medical bills paid at 80% under PIP. And if that’s enough to make you whole or virtually whole again, great. If not, then we need to do further litigation and myself and yourself both can help clients with that as well.

Chris:

Now, who has to carry PIP?

Phillip:

Anybody who owns a vehicle and registers that vehicle in the state of Florida has to have PIP on that vehicle. And PIP is primary to a vehicle, but also to a person. If you own the vehicle, you’re going to be primary on your PIP and then that PIP’s going to cover you, it’s going to cover your household resident dependent relatives, so your spouse, your children, your parents if they live with you, your siblings if they live with you, as well as any dependent folks that live with you.

Chris:

If you owned a motor vehicle and sold it to somebody else, but suppose your name is still on the title, could you be denied PIP benefits under another policy if you still have ownership of another vehicle that’s registered?

Phillip:

If you own a vehicle and it’s registered and titled to you and you sell it to somebody else, you should diligently move to get your name off that registration and off that title as soon as possible. You can go to the Florida Department of Highway Safety Motor Vehicle, the DHSMD website. You can fill out a form to let the state know you don’t own that vehicle anymore. Of course, if you sell the vehicle to a dealer, whether it’s a used car dealer or a new car dealer, they should do that for you, but if you sell it private party, you should absolutely go to the state’s website and let the state know, “I don’t own this vehicle anymore. I don’t want to be liable if they go crash the vehicle,” and then you are no longer obligated and required to carry PIP on your auto insurance policy. But if you don’t call your auto insurance company and cancel your policy or remove that vehicle, you’re still going to be covered under it because you’re paying the premiums for it.

Chris:

Now, suppose you were somebody … I had this happen recently to a client where her vehicle was a total loss and she can’t afford to purchase another vehicle. She wants to cancel her insurance, but she’s also considering a non-owner policy. Is PIP something that’s available under non-owner policies? Are they a good idea?

Phillip:

PIP is generally not available on a non-owner policy and you don’t necessarily need PIP on a non-owner policy. There’s two coverages out there. One is PIP. That’s your mandatory, statutorily required no fault benefit. The other side to that coin is known as medical payments coverage, or Med-Pay. That is your voluntary medical payments that pays. In the state of Florida if you have PIP, Med-Pay kicks in either for the 20% PIP doesn’t cover, maybe kicks in for your deductibles or kicks in after the PIP benefits are exhausted or fully used up.

Phillip:

If you get in a crash and your vehicle’s a total loss, you should not cancel your insurance policy. You should, however, contact your insurance company and remove the scheduled vehicle. You’re not going to lose coverage for that crash because you’re removing it after the loss. But whether the insurance company is going to allow you to do that or they’re going to make you buy a non-owner’s policy and cancel your former policy, convert it to a non-owners policy, that’s what you should do, because presumably during that period of time, when your car is no longer operable, you’re still going to get in other people’s cars. Whether you get in family members or friends, whether you get in an Uber or some other ride share … In Florida, those are transportation network companies … you want to be covered in the event that a crash still occurs and you’re injured, especially if it’s somebody else’s fault, even if it’s not in your own car.

Phillip:

And for that reason, everybody, even if you don’t own a car, should have insurance, specifically uninsured motorist coverage. That’s the most important thing you can get to protect you and your family. You should have that. And that’s the kind of coverage you should keep in the event that your car is a total loss. But like I said, contact your insurance company, try to remove that scheduled vehicle. If they say no, they won’t do that, then convert your policy to a non-owner’s policy.

Chris: Very good. And as far as the issue of UM that’s always an issue because you and I both are personal injury attorneys as well, I lament the client that doesn’t carry uninsured motorist because in the state of Florida, nearly 25% of people don’t carry policies at all.

Phillip:

You see so many crashes with catastrophic and gruesome injuries, and the at fault driver has either no insurance or is under-insured. By that, they have a very small policy, 10,000, 25,000. And I think most people understand if you spend the night in the hospital, your damages are going to exceed 25,000 very quickly.

Chris:

Now, let’s talk a little bit about the myth of full coverage as it applies to auto policies that are sold in the state of Florida, particularly from substandard type carriers.

Phillip:

I actually have a presentation that I give. It’s entitled Full Coverage: An Enigma, because full coverage really doesn’t mean anything. And I was actually shocked to see the other day in browsing Geico’s website that they define full coverage, and they make it quite clear, full coverage does not mean that you are covered for every type of circumstance that can happen in a car crash. In fact, full coverage most commonly means you are covered to protect your lien holder on your car. If you lease your car or you borrow money from a bank to buy your car, full coverage means you’re protecting the lease holder or the bank. It does not mean you’re protecting yourself, your loved ones or your family members.

Chris:

You want to carry UM, you want to carry bodily injury so you can carry UM and obviously supplement your statutory benefits with [inaudible 00:10:06] Med-Pay. How do Med-Pay and PIP differ in terms of rights of subrogation?

Phillip:

PIP is non-subrogable, which means that there is no right of subrogation under PIP. Med-Pay, there is a right of subrogation.

Chris:

Now explain to the audience what a right of subrogation is.

Phillip:

Okay. Subrogation is as a mechanism by which an insurance company can recover what they pay out. If an insurance company pays out under my medical payments coverage, let’s say they pay out $5,000, and Chris, let’s say that you’re the at fault driver and you have insurance coverage, they may be able to recover from you or from me in collecting that money from you, that $5,000, which could serve to offset an ultimate judgment or award that I might receive from a court or from a settlement that I have with you and your insurance company in the event that you cause a crash, not that you ever would, Chris.

Chris: Talk to us a little bit about the death benefit that’s offered under PIP currently.

Phillip:

Sure. It changed back in 2013 where the death benefit is over and above the medical expenses. God forbid that you have a car crash and you don’t make it, your next of kin, your family’s going to get a death benefit over and above the payment of your PIP benefits themselves. It’s not a huge death benefit, it’s $2,500, but it’s something.

Chris:

Yes. And as you said, it’s above and beyond, which is very, very important. Now, are there certain … Well, how is motor vehicle defined with regard to the necessity to carry PIP insurance?

Phillip:

Motor vehicles is not, as you might imagine, it’s not every car that’s on the road. A motor vehicle is a car or a vehicle with four or more wheels. That means that those two-wheeled motorcycles and those three-wheeled motorcycles … I don’t know what they’re called cam cycles … those are not motor vehicles. Motor vehicles are also excluded if it’s a livery vehicle, so a formal taxi cab or a limousine. Those were excluded.

Phillip:

Transportation network companies, so your Uber or your Lyft driver, while they are vehicles, they are excluded to the point where they’ve got their app turned on and are going to pick up a passenger or have a passenger in the car. Those are excluded from PIP coverage. Mass transit vehicles that have five or more passengers in them exclusive of the driver that are owned by a municipality, so your public bus is not a motor vehicle. Contrast that with a school bus, which is a motor vehicle. There are some things that common sense might say, “Well, yeah, that’s a motor vehicle,” but under the PIP law is not a motor vehicle.

Chris:

It seems counterintuitive, in particular with regard to motorcycles, because we have had a lot of cases involving motorcycles and people hurt on motorcycles. They notoriously do not carry PIP and no UM as well, which makes it very, very difficult, but can a motorcycle driver purchase any kind of contractual coverage that could make up for the shortfall with PIP not being mandatory?

Phillip:

Well, absolutely. Well, one, as we touched on before, you should have insurance, whether you own a vehicle or not. If your vehicle is a motorcycle, you should have insurance. If you don’t have a vehicle, you should have a non-owner’s policy. Both of those policies should have uninsured motorist or UM coverage, and as high of limits as you can possibly afford. Again, if you’re injured young in life and your injuries are permanent, it seems counterintuitive, but we could easily calculate where your damages are in excess of a million dollars. If you’ve got 30, 40, 50, 60 years of life left in you and you’re unable to work or you’re diminished in your ability to work or you’re diminished in your ability to enjoy life because your injuries are permanent, those numbers can add up quickly.

Phillip: The other side, and I think specific to your question is what’s your PIP equivalent on a motorcycle. Again, both for a motorcycle and for a non-owner’s policy, you can purchase medical payments coverage, which functions very, very similar to PIP. It covers the medical bills right off the bat.

Chris:

One thing I wanted to cover with you just briefly is as far as reimbursement under PIP is concerned, if you could explain how PIP is applied to cover in a couple of different settings. Let’s talk about hospitals and emergency care and let’s talk about in the clinical setting that’s not hospital.

Phillip:

In general, you get in a car crash, you go treat with somebody, they’re going to submit those medical bills to an insurance company. You should inform them that you have auto insurance so that they know who your PIP carrier is or your medical payments coverage carrier, and they should submit those bills to that carrier. They should also, depending on the circumstance, submit it to your major medical health insurance carrier, as well as anything else that might be relevant and applicable.

Phillip:

To the extent that you’re in a car crash, obviously there’s two attorneys here talking to you. You should absolutely consult with an attorney. We hope that you consult with one of us, but you should follow your attorney’s guidance on what you should tell your physician, on who you should tell the physician to have them submit the bills to. But when the physician, whether it be a hospital or a clinic, submits those bills to the PIP carrier, the PIP carrier has an obligation to make a determination within 30 days of getting that bill to either pay the bill or deny the bill, and mind you, enunciate the reason for the denial.

Phillip:

Or the third thing that they can do, and all of them do do, is pay it at a reduced rate. And that’s a reduction pursuant to a fee schedule or reduction pursuant to rules under the Center for Medicaid and Medicare Services, CMS, and most insurance companies do pay it at a reduced rate. They give you the explanation of a review that tells you how they calculated that reduced rate and what it’s based on. And then depending on who your medical provider is, a hospital, for example, will get paid at 75% of their usual customary rates or 75% of their bill charge. Most other medical providers outside of a hospital will be paid at 80% of double the Medicare rate for that particular area and for that particular year. With a floor being 2007, that they can’t go below that floor.

Chris:

You and I both practiced in the area of PIP for nearly two decades a piece now I would say, and it’s quite a long time. We’ve seen it go through quite a few permutations. We seen the days before there was a need for a demand letter, and then the seven day demand, then the 14 and 30 day and all these various bites at the apple that the carrier is getting, but it seems that 2013 really seemed to shake things up the most. And of those changes, a couple of which I know are near and dear to our hearts, is the 14 day requirement. Explain that because people say to me, “I have 14 days to hire a lawyer, 14 days to get my car fixed.” What does the 14 days apply to?

Phillip: Okay, sure. Well, let’s step back for a moment. PIP has been the law of the land in Florida since 1971, and between 1971 and roughly 2000, there were very little rules and requirements under law of what PIP had to do other than pay a minimum certain amount in coverage. And that coverage amount has changed over the years, but it’s been at that $10,000 level for well over two decades now, notwithstanding regular inflation, and certainly notwithstanding medical inflation, which as most of us know, is at a much higher rate than regular inflation is.

Phillip:

Between 2001 and 2013, the PIP statute was aggregated or changed at least a half a dozen times. Indeed, in 2007, PIP went away for 11 days. It sunset. And then on October 11th of 2007, it came back into play. And then in 2013, there was a major overhaul of the PIP statute. This is the year that you’re referring to. And we’ve been pretty stable since 2013, and one of the reasons that happened was because the insurance companies got a lot of what they wanted in 2013. They got a lot of restrictions that they can add to their ability to reduce and deny medical bills.

Phillip:

And one of those restrictions is the 14 day rule requirement. And that requirement is that if you get in a car crash, you have to treat within 14 days of that crash, or you lose the ability to take advantage of that $10,000 in PIP. As a practical matter, insurance companies have now written into all of their policies, the same thing with medical payments coverage, so if you don’t treat within 14 days, even though you paid for your PIP coverage and you paid for that medical payments coverage, if you don’t treat within 14 days, you will never get the opportunity to use those coverages.

Phillip:

Now, 14 days, we calculate day one would be the day after your crash. And I don’t encourage anybody to wait until the last minute, but if day 14 falls on a Sunday, then maybe they will pay if you go to treat on the Monday, the day 15, but pretty much it’s a you snooze, you lose proposition if you don’t treat within that 14 days. And that treatment’s got to be with a medical doctor, a chiropractor, a dentist, or an osteopath or a nurse practitioner or a physician assistant under a medical doctor or osteopath’s license.

Chris:

The other addition to the statute change that seems to be one of the more profound ones is the never before required emergency medical condition diagnosis. Tell us a bit about that.

Phillip:

Emergency medical condition is a term that comes from the federal EMTALA law, which is for lack of better term is the anti-dumping law. That means if you went to the hospital and you’ve got a severed arm and you’re bleeding out and you can’t afford anything, the hospital has to treat you. They can’t kick you out on the street and let you bleed to death in the alleyway, right? The EMTALA law says that if you have an emergency medical condition, they have to treat you.

Phillip:

What the PIP statute did in 2013 is they engrafted that language from the EMTALA law into the PIP law that says a physician … And here, let’s define our terms. A physician has to be a medical doctor, an osteopath, a nurse practitioner, or a PA working under a medical doctor or osteopath’s license or a dentist, a DDS, but not a chiropractor, not a physical therapist, not a licensed massage therapist … that one of those people needs to make the determination that you incurred that emergency medical condition after the crash.

Phillip:

Now, that doesn’t have to be within 14 days. That can be after 14 days, but they have to at some point render that opinion. That opinion has to be in writing. And as far as the insurance companies are concerned … We would challenge this under law, of course … but as far as the carriers are concerned, they have to use the magic words emergency medical condition.

Chris:

And if they don’t, then another edition they made or change in 2013 was limiting your no fault benefits to $2500 until you have the emergency medical diagnosis [crosstalk 00:21:59].

Phillip:

Absolutely. Yeah, I guess I should have followed up to that. If you don’t have that EMC diagnosis, your benefits of $10,000 get capped at $2,500. Again, you paid a premium to get $10,000 in benefits, but they’re all going to give you $0 until you treat within 14 days. Then, they’re only going to give you $2,500 until you get that EMC diagnosis. And then, and only then, could you potentially avail yourself to the full $10,000. But be aware because during that period of time, the insurance company might see other tricks and tools to reduce your benefits or not pay your benefits such as sending you to an independent medical doctor to get an opinion that your treatment isn’t medically necessary, causally related, or reasonable with regard to that motor vehicle crash. And those three items, medically necessarily, causally related, and reasonable to the medical crash are magic words of art under the law that allows an insurance company to pay your bills, or requires them to pay your bills.

Chris:

Yeah, of course the IMEs are not independent at all. They’re compulsory.

Phillip:

They’re compulsory. If they ask for it properly and you don’t go, they can suspend your benefits simply based on you not attending that exam.

Chris:

That’s awesome information. And there’s one last question I wanted to ask you, and I get this a lot. I’ve got clients that they get a little upset at the idea that you have to pay for your initial medical treatment out of your own policy. They don’t seem to understand it. Let’s explain what no fault is, how it works, [inaudible 00:23:32] talking about personal injury protection and how that operates. But people are often afraid that if they make a PIP claim, that their premiums will go up. Is that the case?

Phillip: That is not the case of a PIP claim. Now, if you cause a crash and you’re at fault in that crash, whether you make a PIP claim or not, your premiums are probably going to go up because you’re going to get deemed at fault for that crash, right? And it’s also important to understand, and everybody should know, insurance companies do not operate in a vacuum. Insurance companies absolutely share information with each other. And when you get in a crash, it goes in a database. And whether you have Progressive today and Amica tomorrow and Geico the day after that, Geico’s going to know about whatever happened if you got in any crashes with Progressive or Amica, so understand they’re going to have access to that information, but the fact that you made a PIP claim, they cannot legally use that to affect your rating for a policy premium.

Chris:

Excellent. Thank you very much for being on the show today. Thank you for that information. You obviously know more about it than anyone I probably know.

Phillip:

Well, thank you. Like I said, for better or worse, we’ve been doing this now, both of us 20 years each, and I’ve known you about that long. Obviously we’ve only been together now for 20 minutes talking about this. It’s just the tip of the iceberg. You’ve been in a crash, everybody should reach out to either yourself or myself and talk to us specifically about your circumstances, about how to best maximize all of your insurance coverages, because again, we’ve talked about, there might be benefits from the at fault driver, there might be benefits on your own policy from uninsured UM motorist. You might have that PIP, you might have that Med-Pay. You might have major medical benefits to go after.

Phillip:

And it really does take somebody who understands all of that and how they all interplay with each other to make sure that you can maximize those values to yourself so that you can get on with your life and get wages paid if wages is what’s most important to you, get medical bills paid if that’s what’s most important to you, replacement services if what’s most important to you, money to pay for out-of-pocket medications, things like that. And again, PIP will cover all of those things if you can get to it before it runs out, because it’s only $10,000.

Chris:

That’s right. [inaudible 00:25:54]. Well, Phil, thank you very much. Thanks for appearing on the show today.

Phillip:

Thank you.

Chris:

That’s awesome, great information. And as Mr. Friedman indicated, you want to call your lawyer and probably call them right away. If you’re at the scene of an accident and you’re injured and you need to be transported medically, that’s one thing. But if you can contact an attorney first, do that because you’ll get the information that you need, and it really will affect the way things unfold for the rest of your claim. Insurance companies have a broad duty to defend claims before they indemnify in claims and that leads to all sorts of procedures that do not favor the injured party, putting it mildly.

Chris:

But folks, if you like what you saw in the presentation today, please hit that like button feel free to like, comment or share below. And once again, thank you for coming to my show, Phil. Thanks for being here.

Chris: And we’ll see you all again next week. We’re going to be Dr. [inaudible 00:26:44], and she’s going to talk about non-surgical options for people with cervical and lumbar neck and low back injuries. Everyone, have a great weekend. Be safe.

Thank you.

For more information please call

Chris DeBari

727-656-7852

or Email

Chris@CDBinjurylaw.com

Chris Debari

Chris Debari

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