The worst version of a peer review denial is the clean one. Not a reduction, not a partial payment, not a dispute over three codes. The carrier obtains a report, declares that none of the treatment was reasonable, related, or necessary, and pays nothing at all. Your patient’s ten thousand dollars in PIP benefits sits untouched, and your accounts receivable sits at zero.
Before March 2023, a practice in that position had a straightforward answer. Sue the carrier as assignee. If you prevailed, the one-way fee statute made the carrier pay your lawyer, which meant a five-thousand-dollar claim was economically worth pursuing.
That answer is gone. The economics of small PIP claims changed completely, and most practices in Tampa, St. Petersburg, Clearwater, Brandon, and across Hillsborough and Pinellas Counties have simply absorbed the losses since — writing off denials that would have been challenged three years ago.
There is another route. It works differently, it runs through the patient rather than the practice, and parts of it are genuinely unsettled. We are going to explain both halves of that sentence, because a provider deciding what to do with a stack of total denials deserves the real picture rather than the pitch.
What Changed in 2023
HB 837, effective March 24, 2023, repealed Florida’s one-way attorney fee statutes. In PIP, that eliminated the mechanism that made provider-assignee litigation viable. A provider suing as assignee now generally bears its own attorney fees regardless of the outcome, which for most claims means the cost of suit exceeds the amount in controversy.
In conjunction with that repeal, the Legislature enacted § 86.121, Florida Statutes. It is narrow, and reading it carefully is the whole exercise.
What § 86.121 Actually Says
The statute applies to an action brought for declaratory relief, in state or federal court, to determine insurance coverage after the insurer has made a total coverage denial of a claim. In such an action:
Either party is entitled to summary procedure under § 51.011, and the court shall advance the cause on the calendar. This is an underappreciated feature. It is a speed provision, and speed changes settlement behavior.
The court shall award reasonable attorney fees to the named insured, omnibus insured, or named beneficiary under the policy, upon rendition of a declaratory judgment in their favor. Note that this reaches beyond the named insured. An omnibus insured — a resident relative, a passenger, a permissive driver covered under the policy — is expressly included. In PIP, where a substantial share of claimants are not the named insured, that matters.
The right may not be transferred to, assigned to, or acquired in any other manner by anyone other than a named or omnibus insured or a named beneficiary. This is the provision that determines who has to be the plaintiff, and it is why a provider holding an assignment of benefits cannot use this statute. The fee right does not travel with the assignment.
A defense offered pursuant to a reservation of rights does not constitute a coverage denial of a claim. A carrier that reserves rights has not denied.
Fees are limited to those incurred in the Chapter 86 declaratory action itself, to determine coverage of insurance issued under the Florida Insurance Code.
The section does not apply to any action arising under a residential or commercial property insurance policy. Useful to know, because a good deal of the early case law construing this statute arises in contexts the statute expressly excludes.
Why the Patient Has to Bring It
Because the fee right cannot be assigned or acquired by anyone other than an insured or beneficiary, the claim has to be prosecuted by the patient. In practice that means two documents at the outset: a retainer signed by the patient, and a written revocation of the assignment of benefits so that the patient — not the practice — holds the claim against the carrier.
This is the structural reason our client is the patient and not your practice. Your office signs nothing, retains no one, and pays no fee at any stage. If the carrier pays, it pays the benefits, which is what resolves your receivable.
We want to be precise about the AOB revocation, because practices reasonably have questions about it. Revoking the assignment does not extinguish your bill. It changes who is asserting the claim against the carrier. It is a decision the patient makes, and it is one we explain to the patient directly.
Where This Gets Unsettled: “Total Coverage Denial of a Claim”
Here is the part that most firms marketing this strategy leave out.
The statute requires a total coverage denial of a claim. It does not define either “total” or “claim,” and Florida trial courts have split on what the phrase means in the PIP context.
The plaintiff’s reading treats each denied bill, or each denied date of service, as a claim — so a carrier that denies a particular bill in full has made a total coverage denial as to that claim, even if it paid other bills on the same accident.
The insurer’s reading treats the aggregate PIP claim arising from one accident as the claim — so if the carrier paid anything at all on the file, there has been no total denial, and § 86.121 is unavailable.
We have litigated this repeatedly, and we have results in both directions. We have obtained favorable rulings from multiple judges in Hillsborough County and in Orange County. We have also had a § 86.121 claim struck by a Hillsborough County judge on precisely the insurer’s theory — the carrier had made prior partial payments on the file, and the court held that defeated the total denial requirement. We have had another adverse ruling on a motion to strike.
At the appellate level, an insurer’s certiorari petition challenging one favorable trial court ruling was dismissed per curiam. That is helpful. It is not a decision on the merits, it does not affirm the reasoning below, and it establishes no binding precedent. Any firm that describes that outcome as settling the question is misreading it.
So the honest statement of the law is this: the interpretation is contested at the trial level in Florida, there is no binding appellate merits decision resolving it, and outcomes currently vary by judge.
What that means operationally. The first question on any file is whether the carrier has paid anything at all on the claim, and if so, how much and when. A file with no payments is a much stronger candidate than a file with partial payments. This is the single most important screening question, and it is why we ask for the payment ledger before anything else.
A Second Contested Point: What Counts as a Judgment
There is a second issue providers should be aware of.
The statute awards fees upon rendition of a declaratory judgment in favor of the insured. Insurers commonly pay after suit is filed rather than litigate to judgment — which raises the question whether a post-suit payment triggers the fee provision when no judgment was ever entered.
Longstanding Florida doctrine treats an insurer’s payment after suit as the functional equivalent of a judgment for the insured — the confession of judgment doctrine. That doctrine developed under the fee statutes HB 837 repealed. Whether and how it applies to § 86.121’s “rendition of a declaratory judgment” language is being actively litigated.
We think the doctrine applies, we have argued it successfully, and we would rather tell you it is contested than have you discover that later.
How the Case Has to Be Framed
One drafting point matters enough to state plainly, because getting it wrong is fatal.
The declaratory questions have to be genuine coverage questions. Whether the treatment was lawfully rendered and compensable under the policy and the PIP statute. Whether the carrier’s stated basis for denial is contrary to law. Whether coverage exists for the services at issue.
The declaratory questions cannot be about attorney fees. Courts treat fee entitlement as collateral to the merits, and a declaratory action framed around the fee right rather than around coverage invites dismissal or a motion to strike. The fee provision is a consequence of prevailing on a coverage question, not the question itself.
This is not a technicality. It is the difference between a case that proceeds and a case that gets struck.
What a Practice Should Do With This
Identify your total denials specifically. Not reductions, not fee schedule disputes, not partial payments. Files where the carrier paid nothing.
Pull the payment ledger for each. Every dollar paid on the claim to any provider, with dates. This determines whether the route is available.
Check whether it is a denial or a reservation of rights. They are different under the statute, and carrier letters are not always clear.
Note whether your patient is the named insured or an omnibus insured. Both are covered by the statute. Neither disqualifies the claim.
Do not write the file off on the assumption that HB 837 closed every door. It closed the provider’s door. It did not close the patient’s.
Send us the file rather than a summary. The peer review report, the explanation of benefits, the carrier’s correspondence, the payment history, and the treatment records.
How Licznerski Law, PLLC Approaches These Claims
We represent the injured patient — the named insured or omnibus insured under the policy. Your practice is not our client, signs nothing, and pays us nothing at any stage. There is no cost to your office for us to review a total denial and tell you whether this route is realistically available on that file.
We will tell you when it is not. Files with prior partial payments face a real and demonstrated obstacle, and we have the adverse orders to prove it. We would rather decline a file than take one on a theory we cannot support in front of the judge it is assigned to.
We handle these claims for patients treated at practices throughout Hillsborough, Pinellas, Pasco, Hernando, Citrus, Polk, Manatee, and Sarasota Counties, including Tampa, St. Petersburg, Clearwater, Brandon, Riverview, Plant City, Palm Harbor, Largo, Safety Harbor, Wesley Chapel, Land O’ Lakes, New Port Richey, Spring Hill, Brooksville, Inverness, Lakeland, Bradenton, and Sarasota.
Frequently Asked Questions
Can our practice bring this action as assignee?
No. Section 86.121 provides that the fee right may not be transferred to, assigned to, or acquired by anyone other than a named insured, omnibus insured, or named beneficiary. The patient has to be the plaintiff.
Our patient is a passenger, not the policyholder. Does that matter?
The statute expressly includes omnibus insureds, so a person covered under the policy who is not the named insured is within its reach.
The carrier paid some of our bills and denied others. Does that kill it?
It creates a genuine obstacle. This is the contested question described above, and courts have gone both ways. It requires a file-specific assessment rather than a general answer.
The carrier sent a reservation of rights letter. Is that a denial?
Under the statute, no. A defense offered pursuant to a reservation of rights does not constitute a coverage denial of a claim.
What happens to our bill if the patient revokes the assignment of benefits?
The bill is not extinguished. The revocation changes who asserts the claim against the carrier. If the carrier pays benefits, that is what resolves the outstanding balance.
Is this strategy settled law?
No, and we will not tell you otherwise. The meaning of “total coverage denial of a claim” is contested in Florida trial courts, there is no binding appellate merits decision resolving it, and we have received both favorable and adverse rulings.
What does this cost our practice?
Nothing. We are retained by the patient. Your office pays no fee at any point.
Contact Licznerski Law, PLLC — Send Us the Total Denials
If a peer review shut off a patient’s benefits entirely and you wrote the file off because HB 837 made it uneconomical to fight, that decision may be worth revisiting. Send us the file. We will tell you candidly whether this route is available, including when the answer is no.
Call Licznerski Law, PLLC at 813-934-3519, email [email protected], or visit www.licznerskilaw.com.
Licznerski Law, PLLC — When Insurers Bet That You Won’t Fight, We Make Them Pay.