10 Fla. L. Weekly Supp. 201b
Insurance — Personal injury protection — Where non-insured passenger who resides in household with automobile liability policy having PIP coverage first submitted claim to vehicle owner’s insurer and received medical payment coverage at 20%, and then 22 months after accident assignee submitted claim to household PIP insurer, assignee is not entitled to any additional payment
EXCELSIOR HEALTH CLINIC, INC., as assignee of Mercile Castor, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. SCO-00-3108. November 28, 2001. Order Granting Costs, January 28, 2002. C. Jeffery Arnold, Judge. Counsel: Donald J. Masten, Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando. Juan Gautier, Orlando.
ORDER OF FINAL SUMMARY JUDGMENT
THIS MATTER having come before this Court for final hearing on June 20, 2001 on Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY’s (Hereinafter “STATE FARM”) Motion for Summary Judgment dated April 30, 2001 and Plaintiff’s Motion for Summary Judgment dated June 5, 2001 and the Court having reviewed the file including all record evidence presented, both parties’ motions and supporting documents and the Court having heard the arguments of counsel and being otherwise fully advised in the premises it is hereby
ORDERED AND ADJUDGED as follows:
NATURE OF THE CASE
1. Plaintiff, EXCELSIOR HEALTH CLINIC, INC., as assignee of Mercile Castor, brought this action seeking recovery of Personal Injury Protection Benefits under §627.736 Florida Statutes.
2. STATE FARM, sought Final Summary Judgment after asserting that EXCELSIOR HEALTH CLINIC, INC. was not entitled to payment of PIP benefits as a result of EXCELSIOR HEALTH CLINIC, INC. and Ms. Castor’s failure to submit the bills to the Hartford Insurance Company. STATE FARM contended that Florida Statutes §627.736(4)(e) creates a priority scheme which establishes the Order that various coverages are responsible. This issue has taken on an added importance in view of the amendments to §627.736(5)(b) which restricts the time period for which a claim could be filed with the Hartford.
3. EXCELSIOR HEALTH CLINIC, INC. filed its own Motion for Summary Judgment under certificate of service dated June 5, 2001. Plaintiff’s position was that Florida Statute §627.736(4)(d) did not create priority scheme.
4. The Court agreed with the position presented by STATE FARM and granted its motion for the reasons outlined below and reserves jurisdiction in consideration of its costs.
FINDINGS OF FACT
5. The material facts in STATE FARM’s Motion for Summary Judgment on Plaintiff’s claim entitlement to no-fault benefits are indeed undisputed and established by the parties in the record evidence. STATE FARM’s insured, Anne Delcy, was involved in a motor vehicle accident on February 12, 1999. Mercile Castor was riding in Ms. Delcy’s vehicle. At the time of the February 19, 1999 motor vehicle accident, Ms. Castor did not own an operable motor vehicle. At the time of the accident Ms. Castor lived with her cousin, Cadet Ketant. Cadet Ketant in his deposition acknowledged that Mercile Castor was his cousin and that she was residing with him at the time of the accident. (See Deposition of Cadet Ketant, September 20, 2000, pages 15 and 26). Mercile Castor advised State Farm that she has lived with Cadet Ketant since 1996. Cadet Ketant testified at the time of the accident he owned an automobile and was insured with the Hartford Insurance Company (Deposition of Cadet Ketant, dated September 20, 2000, page 18). After the automobile accident Cadet Ketant took his cousin, Mercile Castor to an attorney. That attorney requested Mr. Ketant’s insurance information so they could give medical bills to the proper insurance company. Mr. Ketant refused to give insurance information to the attorney. (Deposition of Cadet Ketant, September 20, 2000, page 46).
6. Mercile Castor signed an affidavit on May 25, 1999 in which she stated that she did not own an automobile, she did not have Personal Injury Protection coverage, but she did reside in a household with an automobile liability policy having Personal Injury Protection. (Affidavit of Mercile Castor dated May 25, 1999) .
7. At the time Ms. Castor signed the affidavit she was represented by counsel.
8. On December 28, 1999, State Farm notified Ms. Castor’s attorney that she was not eligible for PIP coverage under Ms. Delcy’s policy, but was eligible for Medical Payments coverage at 20%, which has been remitted to Plaintiff.
9. Plaintiff submitted the bills to Hartford in November of 2000, approximately 22 months after the accident. The affidavit of Dean Bates indicates that he is employed by the Hartford as a PIP supervisor, that he was familiar with the claim made by Excelsior Health Clinic as Assignee for Mercile Castor for an accident that occurred on or about February 12, 1999. His affidavit states that at the time of the accident the Hartford Insurance Company insured Cadet Ketant under an automobile insurance policy which provided no-fault benefits to an eligible resident relative residing with Mr. Ketant on the date of the accident and further states that Mercile Castor was eligible for PIP benefits under Cadet Ketant’s policy at the time of the February 12, 1999 accident as his cousin if she was residing with him at that time and was not required to have no-fault coverage of her own, and was in full compliance with both the terms and conditions of Mr. Ketant’s policy. The undisputed facts established that Ms. Castor was residing with Mr. Ketant at the time of the Accident.
10. The Hartford Insurance Company on February 28, 2001 denied coverage to Ms. Mercile Castor based on her failure to cooperate, failure to submit a timely bill.
CONCLUSIONS OF LAW
11. The Court hereby adopts the foregoing findings of fact to the extent they encompass conclusions of law and mixed findings of fact and conclusions of law.
12. Pursuant to §627.736(1)(a) the insurance company is required to pay from its insured’s PIP benefits up to $10,000.00 for 80% of any reasonable necessary medical, surgical, dental and rehabilitative services provided to the insured due to an injury arising out of the ownership, maintenance or use of a motor vehicle. Florida Statutes §627.736(4)(d) states in pertinent part:
The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
1. Accident bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a self-propelled vehicle if the injury is caused by physical contact with a motor vehicle.
2. Accidental bodily injury sustained outside this state, but within the United States of America or its territories or possessions or Canada, by the owner while occupying the owner’s motor vehicle.
3. Accidental bodily injury sustained by a relative of the owner residing in the same household, under the circumstances described in subparagraph 1. or subparagraph 2., provided the relative at the time of the accident is domiciled in the owner’s household and is not himself or herself the owner of a motor vehicle with respect to which security is required under ss. 627.730-627.7405.
4. Accidental bodily injury sustained in this state by any other person while occupying the owner’s motor vehicle or, if a resident of this state, while not an occupant of a self-propelled vehicle, if the injury is caused by physical contact with such motor vehicle, provided the injured person is not himself or herself . . .
(Emphasis supplied).
13. Based on the undisputed material of facts established in the record and as set forth above, the Court concludes that Excelsior Health Clinic is not entitled to any additional payment from Defendant.
14. Since this is an issue of first impression, this Court certified the following question to be of great importance and suggests that this order should be reviewed directly by the District Court of Appeal of Florida, Fifth District, in accordance with Rule 9.160(e)(1), Fla. R. Civ. P.:
DOES FLA. STAT. §627.736(4)(d) PROVIDE FOR WHICH INSURANCE CARRIER’S PIP BENEFITS ARE PRIMARY AND WHICH ARE SECONDARY WHEN THERE ARE MULTIPLE INSURANCE CARRIERS PROVIDING COVERAGE FOR INJURIES SUSTAINED BY A NON-INSURED PASSENGER IN MOTOR VEHICLE ACCIDENT? IF SO, WHEN IS THE PRIORITY DETERMINED, AS OF THE DATE OF THE ACCIDENT GIVING RISE TO THE PIP BENEFITS, OR THE DATE THE INSURED FILES SUIT TO RECOVER PIP BENEFITS?
DOES THE INJURED NON-INSURED PASSENGER HAVE AN OBLIGATION TO SUBMIT HER CLAIM TO ALL OF THE INSURANCE CARRIERS PROVIDING PIP COVERAGE OR CAN THE NON-INSURED PASSENGER CHOOSE WHICH INSURANCE CARRIER SHE WANTS TO PROVIDE PRIMARY COVERAGE UNDER FLA. STAT. §627.736(4)(d)?
DOES A PIP INSURANCE CARRIER WHO IS SECONDARILY LIABLE BECOME PRIMARILY LIABLE FOR THE INJURED NON-INSURED PASSENGERS PIP CLAIMS IF SAID PASSENGER WITHHOLDS CLAIMS FROM THE PRIMARY PIP CARRIER SUCH THAT THE CLAIMS WERE FILED IN AN UNTIMELY MANNER AND DENIED BY THE PRIMARY PIP CARRIER?
IF FLA. STAT. §627.736(4)(d) CREATES A PRIORITY SCHEME AND THE SECONDARILY LIABLE PIP CARRIER REQUESTS THAT THE INSURED SUBMIT HER CLAIMS TO THE PRIMARY CARRIER, BUT THE INSURED REFUSES TO DO SO, DOES THE SECONDARILY LIABLE PIP CARRIER’S LIABILITY INCREASE FROM 20% OF THE INSURED’S MEDICAL EXPENSES TO 80%?
15. Accordingly, Plaintiff’s Motion for Summary Judgment is hereby DENIED. Defendant’s Motion for Summary Judgment is GRANTED.
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ORDER GRANTING COSTS
THIS CAUSE, having come before the Honorable C. Jeffery Arnold on November 28, 2001, upon Defendant’s Motion For Fees and Costs, and the Court having been fully advised in the premises, it is hereby
ORDERED AND ADJUDGED as follows:
Defendant’s Motion for Costs is hereby GRANTED. Plaintiff shall reimburse State Farm Mutual Insurance Company $793.46 in costs.
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