10 Fla. L. Weekly Supp. 834a
Insurance — Personal injury protection — Coverage — Exhaustion of benefits — Evidence — Hearsay — Exceptions — Business records — Affidavit of adjuster other than original adjuster assigned to file, as records custodian, falls within business records exception to hearsay rule — There is no language in PIP statute requiring escrow of benefits
NARESH B. DAVE, M.D., (As Assignee of Maria Martinez), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 02-17194-SC. Division “I”. August 5, 2003. Charlotte W. Anderson, Judge. Counsel: Timothy Patrick, Tampa. Chandra L. Miller, Thompson Goodis Thompson Groseclose & Richardson, P.A., St. Petersburg.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came on to be heard upon Defendant’s Motion for Summary Judgment on Tuesday, July 22, 2003, and the Court having heard argument of counsel for both parties, having reviewed the record and being otherwise fully informed in these premises, this Court finds as follows:
BACKGROUND:
1. Defendant filed a Motion for Summary Judgment on the basis that Plaintiff is not entitled to benefits, as benefits were exhausted prior to the filing of this lawsuit. In support of its motion, Defendant filed the affidavit of one of its adjusters, Judy Anderson Boggs, as a records custodian of Defendant.
2. Plaintiff responded to Defendant’s Motion claiming
a. that the affidavit of Judy Anderson Boggs cannot be considered by the Court because she was not the original adjuster assigned to the file and as such, her testimony is hearsay, and
b. that the provider submitted a request for escrow of benefits to Defendant with its first bill.
FINDINGS OF FACT:
c. Over the objection of Plaintiff, the Court will consider the affidavit of Judy Anderson Boggs on the basis that it falls within the business record exception of the hearsay Rule. In that regard, the documents relied upon and attached to the Affidavit of Judy Anderson Boggs are contained within the file maintained by Progressive Express Insurance Company in the course and scope of its ordinarily conducted business;
d. This Court also finds that there is no language within Florida Statute, § 627.736 which contemplates the “escrow” of benefits. Requiring an insurance company to escrow benefits at the request of an insured or a provider who holds a valid assignment would subject the insurance company to potential litigation from every other provider whose bills are not paid as a result of said request. If benefits are reserved in escrow pursuant to such a request, the potential that the insured will not realize the full benefit of the available coverage is great. The Court concludes that if the Court should be required to honor a request for escrow of benefits, the Legislature should address the issue and include a provision within the Statute to guide all parties, including the insured, the assignee, the insurance company and the Court. It is therefore,
ORDERED AND ADJUDGED that based upon the record before the Court, that partial summary judgment is GRANTED in favor of Defendant, such that the only issue remaining is whether the Plaintiff is entitled to interest.
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