10 Fla. L. Weekly Supp. 199a
Insurance — Personal injury protection — Action for balance of partially paid bills where policy limits have been exhausted by payment of subsequent claims — Issue of whether insurer paid medical provider reasonable and proper amount for services it provided prior to exhaustion of policy limits is question of fact that precludes summary judgment — Court recedes from prior ruling that exhaustion of benefits relieved insurer of any further liability due to fact that insurer has fulfilled its obligations under policy
BARTOSEK CHIROPRACTIC CENTER, P.A., Plaintiff, vs. NATIONWIDE GENERAL INSURANCE, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. SS-02-000724-RD. January 21, 2003. Charles E. Burton, Judge. Counsel: Glenn E. Siegel, Boca Raton. David S. Lefton, Plantation.Order Denying Defendant Nationwide’s Motionfor Summary Judgment
This action was heard on December 12, 2002 on Defendant Nationwide’s Motion for Summary Judgment. This Court, having been duly advised in the premises, hereby recedes from its earlier decision in Isaacs v. Nationwide, Case No. SS-01-6785-RD, 15th Jud. Cir., Palm Beach Cty., May 17, 2002, and finds as follows:
Pamela Evans Basinger (hereinafter “EVANS”) was injured in a motor vehicle accident that occurred on February 19, 2001. As a result, EVANS sought medical treatment with the Plaintiff, Bartosek Chiropractic Center, P.A., (hereinafter “BARTOSEK”). EVANS executed an assignment of benefits in favor of BARTOSEK under her policy of insurance with the Defendant, Nationwide General Insurance Company, (hereinafter “NATIONWIDE”).
NATIONWIDE alleges that it has paid its policy limits of $17,500.00 P.I.P. and medical payments coverage. BARTOSEK contends that NATIONWIDE paid the charges submitted by BARTOSEK at a reduced rate. NATIONWIDE contends that such bills were paid at the usual, customary and reasonable rate for like services in the community. This issue is a genuine issue of material fact. Thereafter, on September 7, 2001, the benefits for this claim exhausted, after which the Complaint was filed by BARTOSEK. NATIONWIDE argues that because no objection was filed by BARTOSEK prior the benefits exhausting, BARTOSEK waived its rights to object to those bills that were reduced. Nationwide further argues that it fulfilled its contract with its insured, which is for a fixed amount of coverage, when it exhausted all available PIP and medical payments benefits. Furthermore, Defendant argues that Plaintiff, as assignee, cannot have greater rights than those held by the policyholder.
NATIONWIDE relies on this Court’s opinion in Isaacs v. Nationwide, Case No. SS-01-6785-RD, 15th Jud. Cir., Palm Beach Cty., May 17, 2002, in which this Court ruled that the exhaustion of benefits relieves Nationwide of any further liability due to the fact that Nationwide fulfilled its contractual obligations under the policy of insurance. NATIONWIDE further relies upon Neuro Imaging v. Nationwide, Case No. MS-01-9559-RF, 15th Jud.Cir., Palm Beach Cty., Jan. 7, 2002, and MTM Diagnostics v. State Farm Mutual Automobile Insurance Co., 9 Fla.L. Weekly Supp. 581, Fla. 13th DCA, Nov. 20, 2000.
BARTOSEK argues that NATIONWIDE is required to pay the correct providers the correct amounts in accordance with Florida Statute §627.736. NATIONWIDE’s maximum liability under its policy is not BARTOSEK’s challenge; it is NATIONWIDE’s method and priority of making PIP payments. “The issue here is whether an insurer is entitled to pay PIP claims in any order [it] deem appropriate until the benefits are exhausted; or whether an insurer is required to set aside funds in the amount which would be due a medical provider whose bill has been challenged.” Physicians Diagnostics & Rehab, Inc. v. State Farm Mutual Automobile Insurance Co., Case No. 96-5431 (56) (17th Cir., Broward County, July 8, 1998). In other words, BARTOSEK argued that if NATIONWIDE did not pay the reasonable expenses of necessary medical services in compliance with Florida Statute §627.736 and with the Defendant’s policy, and thereafter pays another medical provider, NATIONWIDE could go back to that other provider to get the money back that would then have been paid in excess of their policy limits.
In further support of its position BARTOSEK relies on Boulevard National Bank of Miami v. Air Metal Industries, Inc., 176 So.2d 94 (Fla. 1965), in which the Florida Supreme Court adopted the “English Rule” of priority between successive assignees of an account receivable, and State Farm Fire and Casualty Co. v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990), in which the Florida 5th District Court of Appeals recognized that the English Rule adopted in the Boulevard case would be applicable to a suit for PIP benefits. BARTOSEK also cites Pinnacle Medical, Inc. d/b/a Iso Data Diagnostics v. Allstate Insurance Co., Case No. 97-12340 (18), L.T. Case No. 96-6203 (17th Cir., Broward County, April 23,1998) [5 Fla. L. Weekly Supp. 663a] and Physicians Diagnostics & Rehab, Inc. v. State Farm Mutual Automobile Insurance Co., Case No. 96-5431 (56) (17th Cir., Broward County, July 8, 1998) in its argument that an insurer is not permitted to apply the payments of medical bills in any manner it chooses and to exhaust PIP benefits so as to deny payment to medical providers who are not favored.
BARTOSEK also filed the following cases in its Notice of Filing Supplemental Authority in support of its position: Seminole Casualty Insurance Company v. Philip D. Schtupak, D.C., 9 Fla. L. Weekly Supp. 529a (Fla. 17th DCA) [17th Cir., Broward County]; Tower Health Center v. Lyndon Property Insurance Company, 7 Fla. L. Weekly Supp. 627b (Broward Cty. Ct., June 5, 2000); Med+PIus Medical Clinics, Inc. v. Allstate Insurance Company, 8 Fla. L. Weekly Supp. 250a (Manatee Cty. Ct., Jan. 19, 2001).
BARTOSEK also argues, and this Court now agrees, that the real issue is whether or not NATIONWIDE paid the provider the proper amount for the services provided by BARTOSEK prior to the policy limits exhausting. This is a factual issue that precludes summary judgment. In finding that it is a question of fact as to whether the reductions NATIONWIDE applied were proper, this Court now recedes from its May 17, 2002 ruling in Isaacs v. Nationwide. In doing so, this Court recognizes that in its ruling in the Isaacs case, it was in essence creating legislation that did not exist.
NATIONWIDE, or any insurance company may not be the arbitrator in deciding whether the reductions it applied were reasonable and proper. That is a question of fact. Neither the legislature nor the insurance contract imposes the burden on the Plaintiff to put the insurance company on notice of an objection to the reductions taken here. What the legislature does require is that the Plaintiff must file its claim against the Defendant within the five-year statute of limitation period from the date of the breach allegedly committed by the insurer. The Plaintiff timely filed its claim in this case.
It is therefore ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is hereby DENIED.
* * *
