10 Fla. L. Weekly Supp. 833a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 11 Fla. L. Weekly Supp. 248a
Insurance — Personal injury protection — Demand for escrow of disputed policy benefits is available mechanism for policy holder or assignee to reserve disputed benefits in the eventuality that benefits are exhausted — Motion to strike demand for escrow denied
H. G. SMITH, D.C., P.A., (a/a/o Javadga Fountain), Plaintiff, vs. SOUTHERN GROUP INDEMNITY, INC., Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 2003-3364-SC-J. August 19, 2003. Gaston J. Fernandez, Judge. Counsel: David W. Lipscomb, Lipscomb & Nicholas, P.A., Tampa, for Plaintiff. Gale L. Young, Tampa, for Defendant.
VACATED. 11 Fla. L. Weekly Supp. 248a
ORDER DENYING DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S DEMAND FOR ESCROW OF INSURANCE BENEFITS
The Plaintiff, H.G. Smith, D.C., P.A., filed a lawsuit pursuant to an assignment of benefits seeking the payment of Personal Injury Protection benefits from the Defendant, Southern Group Indemnity, Inc. The Plaintiff filed a Demand for Escrow of Insurance Benefits contemporaneously with the Complaint. The Defendant subsequently filed a Motion to Strike Plaintiff’s Demand for Escrow of Insurance Benefits. The basis for the Motion to Strike was that no legal or statutory authority existed to support such a demand.
This Court recognizes the opinion reached by the Second District Court of Appeals in Bennett v. State Farm Mutual Automobile Ins. Co., 580 So.2d 217 (Fla. 2nd DCA 1991) wherein the Court provided that the insured has the right to apportion his/her claim in order to maximize available insurance policy benefits. Pursuant to State Farm Fire and Cas. Co. v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990), the assignee gains all of the interest of the assignor under the insurance contract. Therefore, the patient, Javadga Fountain, transferred her right to apportion benefits of her insurance policy to the Plaintiff, H.G. Smith, D.C., P.A., when she assigned the policy benefits payable to H.G. Smith, D.C., P.A.
Additionally, the Court finds the decision in MTM Diagnostic, Inc. v. State Farm Mutual Automobile Ins. Co., 9 Fla. L. Weekly Supp. 581e (Fla. 13th Cir. Ct. November 20, 2000) to be persuasive. In MTM, the Court states that without an escrow of benefits request, the insurer is obligated to continue paying any contractual claims. As such, the Court recognizes that a Demand for Escrow is an appropriate method for reserving policy benefits in the eventuality that said benefits exhaust. The MTM line of analysis is supported in the decision of Images of the Bay, Inc. (a/a/o Ouen Keo) v. Allstate Ind. Co., 10 Fla. L. Weekly Supp. 120a (Fla. 13th Cir. Ct. December 9, 2002). In Images of the Bay, the Court granted Defendant’s Motion for Summary Judgment, stating that the Plaintiff failed to serve a request for escrow of disputed benefits prior to policy exhaustion. In furtherance of the rationale of the Images of the Bay decision, the Court finds that a Demand for Escrow of Disputed Policy Benefits is an available mechanism for the policy holder and/or assignee, and that Defendant was given proper notice via service of the Demand for Escrow of Insurance Benefits with the Complaint.
IT IS THEREFORE
ORDERED AND ADJUDGED that Defendant’s Motion to Strike Plaintiff’s Demand for Escrow of Insurance Benefits is DENIED, Plaintiff is ORDERED to provide Defendant with a Statement of Particulars identifying the amount in dispute within ten (10) days of the date of this ORDER, and Defendant is ORDERED to reserve the amount identified in the Statement of Particulars in escrow until the above-captioned dispute is resolved.
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