10 Fla. L. Weekly Supp. 530b
Insurance — Personal injury protection — Coverage — Denial — Exhaustion of benefits — Insurer who denied coverage based on alleged preferred provider contract cannot wait until all benefits are exhausted, two years after filing of complaint, and move for summary judgment against assignee who timely demanded payment of PIP claim — Partial summary judgment granted in favor of assignee on inapplicability of PPO contract to which it was not a party
EMERGENCY MEDICAL SPECIALISTS, P.A., (assignee of Bonnie Cleland), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2002-CC-14736-XXXX-MA. Division N. May 12, 2003. Gary P. Flower, Judge. Counsel: Vincent P. Gallagher, Harrell & Johnson, P.S., Jacksonville. James C. Rinaman, III, McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Jacksonville, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
This cause came to be heard upon the Motion for Summary Judgment (motion for summary judgment), filed by counsel for Progressive Express Insurance Company (insurer), on December 23, 2002, and the Motion for Partial Summary Judgement (motion for partial summary judgment), filed by counsel for Emergency Medical Specialists, P.A. (PIP assignee), on December 26, 2002. The insurer’s motion for summary judgment alleged that PIP benefits were exhausted on September 15, 2000, two years before the date of the filing of the Complaint. The insurer supported its assertion with the affidavit of Judy Anderson, to the effect that benefits were exhausted on the Cleland accident on September 15, 2000. The insurer thus claims it owes the PIP assignee nothing.
The PIP assignee’s motion alleges that the PIP assignee filed a claim for $283 with the insured within thirty days, as required by statute, and the insured denied the claim based on an alleged “Beech Street contract,” a contract to which the PIP assignee was not a party. The PIP assignee thus demanded that summary judgment be granted on the inapplicability of the alleged Beech Street contract. The motions relate to a claim for personal injury protection (PIP) benefits assigned by Bonnie [sic] Cleland (Cleland) to the PIP assignee on the day of Cleland’s Florida auto accident, August 2, 2000. The Court held a hearing on the motions on March 21, 2003; both parties were represented by counsel. The Court, having heard arguments, and read memoranda filed by the parties, and having fully considered the pleadings, on file together with the affidavits, finds the following facts are undisputed.Findings of Fact
Cleland was involved in an auto accident on August 2, 2000; that the PIP assignee treated Cleland for emergency services (a broken arm and facial lacerations) that same day; that the PIP assignee made a demand for payment from the insurer based on Cleland’s assignment of the PIP claim, and that the insurer failed to make payment of eighty percent of the usual and customary fee within thirty days, as required by statute. See § 627.736(4)(b), Fla. Stat. (2002). (The denial of proper payment is dated August 22, 2000.) The Complaint prays for the payment due, plus interest and an attorneys’ fee, as provided in Florida’s Motor Vehicle No-Fault Law. See §§ 627.730, 627.428(1), Fla. Stat. (2002).Conclusions of Law
A motion for summary judgment properly is granted when the movant proves that no material fact remains in dispute. Landers v. Milton, 370 So. 2d 368 (Fla. 1979). The PIP assignee provided evidence that proper payment of its claim was denied based on an alleged Beech Street contract. The insurer provided no contract or other evidence to support the applicability of the alleged Beech Street contract; the PIP assignee’s motion for partial summary judgment thus must be granted. Id. at 370 (“A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. But once he tenders competent evidence to support his motion, the opposing part must come forward with counter-evidence sufficient to reveal a genuine issue. It is not enough for the opposing party merely to assert that an issue does exist.”).
The insurer’s motion for summary judgment however must be denied. The Florida Supreme Court tells us that Florida follows the English common law regarding assignments, and applies that law to Florida no-fault insurance claims. See Nationwide Mut. Fire Ins. Co. v. Pinnacle Med., Inc., 753 So. 2d 55 (Fla. 2000) (holding unconstitutional a statutory prohibition on PIP assignee’s right to sue insured for breach of no-fault contract). The “assignee who first gives notice of his claim to the debtor is preferred and has prior rights” over other assignees. Boulevard Nat’l Bank v. Air Metal Indus., Inc.,176 So. 2d 94, 96 (Fla. 1965) (holding same). An insurer is obligated to pay a PIP claim within thirty days of written notice of the claim. § 627.736(4)(b), Fla. Stat. (2002). The “burden is clearly upon the insurer” moreover “to authenticate the claim within the statutory time period,” and failure to do so will not avoid the obligation to pay statutory interest and attorneys fees. Martinez v. Fortune Ins. Co., 684 So. 2d 201, 203 (Fla. 4th DCA 1996) (holding same). An insurer who is in doubt about who to pay is “not entitled to simply do nothing”; instead, the insurer must “issue a joint check to the [assignee] and the insured or interplead the funds.” Margiotta v. State Farm Mut. Auto. Ins. Co., 622 So. 2d 135, 136 (Fla. 4th DCA 1993) (holding insurer liable for attorneys’ fees); Gov’t Employees Ins. Co. v. Gonzalez, 512 So. 2d 269 (Fla. 3d DCA 1987) (holding same). Nothing in Florida’s no-fault law permits an insurer to deny payment of benefits based on a non-existent contract, wait until all benefits are exhausted, and then move for summary judgment against an assignee who timely demanded payment of a PIP claim. The insurer’s motion for summary judgment thus must be denied.
Therefore, it is
ORDERED and ADJUDGED that:
1. Plaintiff’s motion for Partial Summary Judgment is hereby GRANTED.
2. Defendant’s Motion for Summary Judgment is hereby DENIED.
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