DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

GARRISON PROPERTY & CASUALTY INSURANCE COMPANY,

Appellant,

v.

AVENTURA ORTHOPEDICARE CENTER, P.A.,

a/a/o ZULINDA DE LOS SANTOS,

Appellee.

No. 4D21-379

[June 30, 2021]

Appeal from the County Court for the Seventeenth Judicial Circuit, 

Broward County; Phoebee Francois, Judge; L.T. Case Nos. COWE16-5530

and CACE19-23792.

Rebecca O’Dell Townsend and Scott W. Dutton of Dutton Law Group, 

P.A., Fort Lauderdale, for appellant. 

Christina M. Kalin and John C. Daly of Daly & Barber, P.A., Plantation, 

for appellee.

FORST, J.

Appellant Garrison Property & Casualty Insurance Company (“Insurer”) 

seeks review of the trial court’s order denying its motion for summary 

judgment and granting Appellee Aventura Orthopedicare Center, P.A.’s

(“Provider”) motion for confession of judgment and attorney’s fees. On 

appeal, Insurer argues that the trial court erred by granting final judgment 

in favor of Provider because Provider failed to respond to Insurer’s requests 

for information pursuant to section 627.736(6)(b), Florida Statutes (2016). 

We agree and reverse. 

Background

Zunilda De Los Santos (“Insured”) sustained injuries from a motor 

vehicle accident. Insured received treatment from Provider. On the first 

date of treatment, a qualified physician evaluated Insured and determined 

that Insured had suffered an emergency medical condition (“EMC”).

 
2

Provider timely submitted a claim to Insurer for the costs of treatment 

and has consistently maintained that it included documentation of the 

EMC determination with the initial mailing of the claim documents. 

Insurer, on the other hand, has consistently maintained that it did not 

receive documentation of the EMC determination, although it 

acknowledges that it had received the remainder of the claim documents. 

In response to Provider’s claim, Insurer tendered a portion of the funds 

along with an “Explanation for the Review Amount.” In pertinent part, the 

“Explanation” stated:

Per F.S.A 627.736(1)(a)4, $2500.00 has been reimbursed. In 

order to make any additional reimbursement decisions, please 

provide the determination of the patient’s emergency medical 

condition by a provider authorized in 627.736(1)(a)3 & 4. This 

is a written request pursuant to F.S.A 627.736(6)(b).

Following the initial request, Insurer sent approximately thirty more 

identical requests to Provider seeking the EMC determination, two of 

which were sent in response to Provider’s pre-suit demand letter. Provider

did not respond to any of the (6)(b) written requests, electing instead to file 

suit.

During discovery, Provider eventually produced the EMC 

determination, and Insurer tendered the remaining balance due under the 

insurance policy to Provider. Following this payment, the only issue 

remaining between the parties was an award of attorney’s fees pursuant 

to section 627.428, Florida Statutes (2016). 

Insurer moved for summary judgment, maintaining that the suit was 

premature due to Provider’s failure to comply with section 627.736(6)(b), 

Florida Statutes (2016). Provider countered with a motion for confession 

of judgment and award of attorney’s fees because Insurer paid the claim 

after suit had been filed. 

At the hearing on both motions, Insurer argued that, even if Provider

established that the EMC determination had been sent to Insurer with the 

original claim documents, the suit was still premature because Provider

failed to respond to any of Insurer’s requests for information pursuant to 

section 627.736(6)(b). Insurer contended that the statute’s language

required Provider to respond to Insurer’s request for information before

filing suit, regardless of whether the EMC determination had been sent. 

Following the hearing, the trial court issued a short order denying 

Insurer’s motion for summary judgment and granting Provider’s motion 
3

for confession of judgment. A corresponding final judgment of dismissal 

was entered in Provider’s favor. Insurer filed a timely notice of appeal. 

Analysis

“The issue before this Court is a matter of statutory construction, which 

we review de novo.” Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 

362, 367 (Fla. 2013); see also Delta Fire Sprinklers, Inc. v. OneBeacon Ins. 

Co., 937 So. 2d 695, 697 (Fla. 5th DCA 2006) (“The standard of review 

governing the ruling of a trial court on a motion for summary judgment 

posing a pure question of law is de novo.”) (italics omitted). 

In this case, we focus on two portions of section 627.736, Florida 

Statutes (2016). First, section 627.736(4)(b)2. provides in pertinent part:

(b) Personal injury protection insurance benefits paid 

pursuant to this section are overdue if not paid within 30 days 

after the insurer is furnished written notice of the fact of a 

covered loss and of the amount of same. However:

. . . .

2. If an insurer pays only a portion of a claim . . . the insurer 

shall provide at the time of the partial payment . . . an itemized 

specification of each item that the insurer had . . . declined to 

pay and any information that the insurer desires the claimant 

to consider related to the medical necessity of the denied 

treatment or to explain the reasonableness of the reduced 

charge if this does not limit the introduction of evidence at 

trial. . . .

Second, section 627.736(6)(b) states in pertinent part:

Every [qualifying medical provider] . . . shall, if requested by 

the insurer against whom the claim has been made, furnish a 

written report of the history, condition, treatment, dates, and 

costs of such treatment of the injured person and why the 

items identified by the insurer were reasonable in amount and 

medically necessary, together with a sworn statement that the 

treatment or services rendered were reasonable and necessary 

with respect to the bodily injury sustained and identifying 

which portion of the expenses for such treatment or services 

was incurred as a result of such bodily injury, and produce, 

and allow the inspection and copying of, his or her or its 
4

records regarding such history, condition, treatment, dates, 

and costs of treatment if this does not limit the introduction 

of evidence at trial. 

(emphasis added).

The best method to determine the legislature’s intent is to “look to the 

actual language used in the statute.” Daniels v. Fla. Dep’t of Health, 898 

So. 2d 61, 64 (Fla. 2005). “When the statute is clear and unambiguous, 

courts will not look behind the statute’s plain language for legislative 

intent or resort to rules of statutory construction to ascertain intent.” Id. 

Here, Insurer paid only a portion of Provider’s claim. However, in 

compliance with section 627.736(4)(b)2., Insurer specified the reason for 

not paying the claim’s full amount (because it lacked the EMC 

documentation) and, pursuant to both section 627.736(4)(b)2. and (6)(b), 

Insurer set forth a request for the “information that the insurer desires the 

claimant to consider related to the medical necessity of the denied 

treatment.” As noted above, section 627.736(6)(b) states that the party 

making the insurance claim “shall, if requested by the insurer against 

whom the claim has been made, furnish a written report of the history, 

condition, treatment, dates, and costs of such treatment of the injured 

person . . . .” § 627.736(6)(b), Fla. Stat. (2016) (emphasis added). 

We have previously held that an insurer has “the right, pursuant to 

section 627.736(6)(b), to request a written report of the insured’s 

condition.” Med. Ctr. of Palm Beaches v. USAA Cas. Ins. Co., 202 So. 3d 

88, 92 (Fla. 4th DCA 2016). In the instant case, as in Medical Center, 

Provider’s demand letter and lawsuit were “premature” due to Provider’s 

failure to respond to Insurer’s numerous section 627.736(6)(b) requests 

for EMC documentation. See id. at 92–93. Provider not only failed to send 

(or resend) the requested information to Insurer, Provider also failed to 

even respond and inform Insurer that it was under the impression that the 

EMC determination had been included in the initial mailing. 

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. As a safeguard for 

abuse of section 627.736(6)(b), the statute provides that “[t]he person 

requesting such records and such sworn statement shall pay all 

reasonable costs connected therewith.” § 627.736(6)(b), Fla. Stat. (2016).

Accordingly, we agree with Insurer’s answer brief statement that:
5

[Provider] was not permitted to ignore [Insurer’s] [section 

627.736]6(b) requests and then file suit, even if [Provider] 

believed that [it] had previously sent an EMC determination to 

[Insurer]. Litigation could have been avoided entirely if 

[Provider] had simply followed the statutory prerequisites to 

filing suit, spent 55 cents on a stamp, and mailed a copy of 

[Provider’s] EMC determination to [Insurer] in response to any 

one of [Insurer’s] thirty-three (33) requests for information 

pursuant to § 627.736(6)(b), Fla. Stat.

Conclusion

We agree with Insurer that a provider (more accurately, the provider’s 

attorneys) should not be rewarded for commencing an unnecessary 

lawsuit rather than complying pre-suit with a reasonable request for 

information/documentation. Such a response by Insurer would not only 

have been reasonable, but it would also have complied with section 

627.736(6)(b), Florida Statutes (2016). Because Provider failed to respond 

to Insurer’s requests for the EMC determination made pursuant to section 

627.736(6)(b), its lawsuit was premature, and Insurer’s post-suit payment 

did not constitute a confession of judgment. Accordingly, we reverse the 

trial court’s denial of Insurer’s motion for summary judgment and 

corresponding grant of Provider’s motion for confession of judgment and 

attorney’s fees. We remand with directions for the trial court to grant 

Insurer’s motion for summary judgment. 

Reversed and remanded with instructions.

LEVINE, C.J., and MAY, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.