10 Fla. L. Weekly Supp. 120a
Insurance — Personal injury protection — Coverage — Exhaustion of benefits — Action for balance of partially paid bills where policy limits have been exhausted by payment of subsequent claims — Where medical provider did not request insurer to escrow or reserve unpaid amount, and insurer did not receive actual or constructive notice of suit for unpaid portions of bills until after exhaustion of policy limits, summary judgment is granted in favor of insurer
IMAGES OF THE BAY, INC., as assignee of OEUN KEO, Plaintiff, vs. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 01-11412-SC/K. December 9, 2002. Eric R. Myers, Judge. Counsel: Phil S. Yurecka. James G. Souza,
III.ORDER ON DEFENDANT’S MOTION FOR SUMMARYJUDGMENT AND PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come on for hearing on October 22, 2002, on Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Summary Judgment in the above-styled matter, and the Court having reviewed the Court file, having heard arguments of counsel, having reviewed the case law tendered unto the Court by counsel, and being fully advised in the premises, the Court makes the following findings:
1. The Plaintiff medical provider filed the subject lawsuit on June 5, 2001, seeking payment of PIP benefits from the Defendant for a date of service of insured Oeun Keo occurring on February 20, 2001, and arising out of a motor vehicle accident occurring December 31, 2000.
2. The only substantive benefits issue in this case involves Defendant’s reduction of the Plaintiff’s charges for two MRIs performed of insured Oeun Keo on February 20, 2001, based upon the Defendant’s contention that the amounts paid by the Defendant to the Plaintiff on May 9, 2001, accorded with the pre-set amounts called for in the Plaintiff’s contract with a provider organization, Beech Street.
3. The $10,000.00 in PIP benefits available under insured Oeun Keo’s policy with the Defendant were exhausted on June 25, 2001, via payment to another medical provider.
4. The Defendant was served with the Plaintiff’s lawsuit on July 31, 2001, after the exhaustion of benefits under the subject insurance policy.
5. Based upon the attachments to the Defendant’s Affidavit filed in support of its Motion for Summary Judgment, the Defendant paid pending medical bills in chronological order of receipt until the available PIP benefits were exhausted, in accordance with the holding of MTM Diagnostic, Inc. v. State Farm Mutual Auto. Ins. Co. (13th Judicial Circuit, Hillsborough County, No. 00-238-X, Fla. 13th Circ. Ct., November 20, 2000) [9 Fla. L. Weekly Supp. 581e], and the case law precedent cited therein.
6. The Court finds that the Defendant’s exhaustion of benefits via payment to another provider was proper under the terms of Florida Statutes section 627.736 and the Defendant’s insurance policy.
7. The Court finds that based upon the evidence within the record and produced at hearing, the Defendant did not receive actual or constructive notice of the Plaintiff’s lawsuit for PIP benefits until July 31, 2001, the date on which the Defendant actually was served with the Plaintiff’s lawsuit.
8. The Court finds that based upon the evidence within the record and produced at hearing, the Plaintiff did not serve a pre-exhaustion request for escrow or reservation of disputed benefits after the Defendant issued partial payment of the Plaintiff’s charges on May 9, 2001.
9. Based upon the evidence and arguments presented in the subject case, this case is not distinguishable from the pertinent factual circumstances involved in MTM Diagnostic, supra.
10. The Court finds that under the binding case law precedent cited above, the Defendant is entitled to summary judgment as a matter of law based upon the exhaustion of PIP benefits available under the subject insurance policy prior to the Defendant’s receipt of notice of this lawsuit.
11. Further, the Court finds that the Plaintiff is not entitled to summary judgment to the extent or on the basis argued within Plaintiff’s Motion.
IT IS THEREFORE
ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is GRANTED, in accordance with the above cited case law, based upon the exhaustion of PIP benefits available under the subject insurance policy with Defendant, and Plaintiff’s Motion for Summary Judgment is DENIED.
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