10 Fla. L. Weekly Supp. 738a
Insurance — Personal injury protection — Medical bills — Reduction — Exhaustion of benefits — Action by medical provider for balance of partially paid bill after policy limits have been exhausted in payment of subsequent claims of other assignees — In the absence of absolute assignment of all benefits under policy to medical provider or bad faith on part of insurer in payment of subsequent claims, summary judgment in favor of insurer is granted
NEURO-IMAGING ASSOCIATES, P.A., Plaintiff, vs. NATIONWIDE INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division RF. Case No. MS-01-9559-RF. January 7, 2002. Robert S. Schwartz, Judge. Counsel: Michael G. Trerotola, Russo & Mitchell, P.A., Fort Lauderdale, for Plaintiff. Susan Kent, Law Offices of Gonzalez & Capito, West Palm Beach, for Defendant.ORDER
THIS MATTER WAS BEFORE THE COURT pursuant to a motion for a summary judgment, filed by the Defense and the court, having examined the entire court file, and being otherwise fully advised, hereby makes the following findings and/or rulings.
Briefly, the operative facts are that apparently, the Defendant’s insured was injured in an automobile accident and went for treatment or evaluation to the Plaintiff, who had the insured sign an assignment of insurance benefits. Allegedly, necessary and reasonable treatment was given and billed at a reasonable price which was only partially paid by the Defendant. The Plaintiff then sued for the remainder plus interest. In the meantime, the insured had further treatments, apparently, with other providers, made other assignments, and as a result of the Defendant paying for the other treatments, the insurance benefits were exhausted. The Defendant defends, inter alia, on the grounds that insurance policy benefits were exhausted by action of the insured, and the Plaintiff has no rights but those derived from him. Now the Defendant seeks to have a summary judgment on their behalf as they contend that they can not be liable beyond their policy limits.
The Defendant’s point of view is that their contract was with the insured, not the Plaintiff. That the insured, contracted for a fixed amount of coverage, all of which has been paid out under the terms of their contract. Further, that the Plaintiff has no rights against the Defendant, except as can be assigned to them by the insured. The contract, having been fully performed by the original parties in privity, the Plaintiff, as assignee, could not gain more than the rights held by the assignor in the policy assigned to them, which can be no more than the assignor had the ability to assign. The assignor-insured, having used the full amount of the contract funds, cannot expect a right greater than that bargained for, nor assign rights beyond those which he held. The insured could not maintain a contract action against the Defendant under the undisputed facts, as it was fully performed. No party can expand his or her contractual rights, unilaterally, by assigning more than he had to assign. To be able to otherwise would turn the law of contract on its head.
The Plaintiff argues that since the contract benefits had not been exhausted at the time billed, the Defendant should have been paid the full amount billed by them and that the refusal to pay the full amount was an improper, unilateral decision, not backed up by any legal reason.
The Plaintiff’s argument that it should have been paid the full amount of their claim would be stronger if the assignment, which was not included in the complaint or court file for some unknown reason, showed that the full amount of the insurance policy was irrevocably and totally assigned to them. Then the issues regarding whether the decision to pay less than the amount billed could be litigated, as, presumably, there would be funds left over under the policy from which a judgment could be paid. However, this court has yet to see such an absolute assignment in a PIP case. The usual “assignment” as seen by this court, would be better described as an allocation of benefits under the policy to various providers in an amount that is not at the time made, known, to reimburse the provider for treating the insured, without requiring payment from the patient either before treatment, or in some cases, ever. These “assignments” are not absolute and sometimes fail because of that; also, since it is within the right of the insured to require that the insurance company withhold a certain percentage or amount of the insurance benefits for lost wages or income. Another item that would strengthen the Plaintiff’s case is some legitimate claim of bad faith on the part of the insurance company in not paying them the full amount they sought. But, it is the duty of the insurance company to make sure that they pay only the reasonable value of the necessary services so that there is no unjust enrichment to the prejudice of the insured for whom they have a duty to make sure that the available funds under the policy go as far as is reasonable and possible. It would be simple, in a situation such as this case, where the entire policy benefits were paid, to have paid them to the fewest providers as possible as there would be less work to be done, less records to keep, and less law suits from providers who found fault with the amount they were paid.
The Defendant did nothing wrong here. They were under a contract to the insured for a limited amount. They paid that amount in toto. They are not responsible for the insured’s over-use of his policy. The Defendant did not gain anything out of their actions. They fully performed their contract with the insured. It is to the insured that the assignees should look for any additional payments.
It is black letter law that a person cannot assign a greater right than he or she has in a given contract or item; that the assignee stands in the shoes of the assignor when it comes to the rights being assigned. There are numerous cases where an insurance case has gone to jury, which returns a judgment for an amount greater than the contractual coverage and the appellate court rolls back the judgment, and holds that the Plaintiff cannot gain more from the insurance company than the contractual benefit amount or type in the absence of a showing of bad faith on the part of the Defendant. Allstate v. Shilling, 374 So.2d 611 (Fla. App. 4th Dist. 1979); Atkins v. Bellefonte Insurance Co., 342 So.2d 837 (Fla. App. 3rd Dist. 1977); Dixie Insurance Co. v. Lewis, 484 So.2d 89 (Fla. App. 2nd Dist. 1986); GEICO v. Robinson, 581 So.2d 230 (Fla. App. 3rd Dist. 1991).
There is no logical basis for any allegation of bad faith involved here, on the part of the Defendant; they saved no money by their actions; what is the basis of their wrongdoing? It surely can’t be that they were careful about the amount of the payments that they made to a given provider as other providers’ claims continued to come in from more assignees demanding payment out of the diminishing fund pool, which ran out. The Court cannot see why the Defendant should be punished for having fully performed their contract nor why they should have to pay more than 100% of the benefits because the assignor kept assigning and the assignees kept accepting the assignments. Legally, unless the assignment was an absolute assignment of all of the benefits, the Defendant did not have the luxury of holding off in the payment of legitimate bills from other providers while there are funds available, until sometime in the indefinite future it is determined either by a court or further investigation by the Defendant, that it should have paid more to the Plaintiff. If it had done that, there would be as many lawsuits as there were providers who didn’t get fully paid. This is not a reasonable requirement to hold over an insurance company.
The only wrong-doer, if there is any, is the assignor who exceeded his contractual, credit limit; if anyone should have to pay for the incomplete reimbursement for services, assuming that there is a legitimate claim for real services, actually performed, for a legitimate purpose; it is the assignor. The Defendant already paid all that it was under contract to pay to anyone from this particular transaction.
The Plaintiff’s best point is the English rule which would have the creditor first in line to get paid, the first one to be paid. This has the benefit of being simple to state and to follow. However in this court’s view is somewhat non-sensical in a situation where as here, they were paid what was determined to be the full amount owed to them; the company’s only option in this situation would be to pay more than it thinks it should, or reserve, to the prejudice of other providers until a court rules on the issue, an amount sufficient to cover the demanded fee, plus costs and attorney fees.
Further, surely, when an insurance company is deciding whom to pay out of more claimants then it has funds available to pay, the provider that is the fastest biller is not necessarily the provider that should be given the most of a limited resource; which is more important to be paid, the provider that provided the most treatment, or who charged the most, or whose result was the most important to the life or health of the insured, or the one that is the most clearly covered under the terms of the contract and law, or, possibly, the provider that does the best job, or the fastest biller? The court’s view, is that the Defendant should use a good faith procedure in deciding whom to pay first, and how much. Possibly, the company should take all of the providers and pay them on a percentage basis, when clearly there is more being billed than there are funds available to pay. If the “first in time” rule were to be the rule adopted, then there would undoubtedly be a rush by providers, in this, growing daily, overly competitive1 arena of law suits, PIP actions, to see who can bill the fastest; speed becoming the standard regarding whom should be paid and when.
For all of the above, it is,
ORDERED AND ADJUDGED that motion for a Summary Judgment is granted.
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1The court notes with growing apprehension, the number of television ads by “professionals” seemingly hawking their wares like a car dealer. The number of lawyers the undersigned sees during late night television viewing is growing daily. One particular firm, has a fellow, standing in a pose, like a “gangsta musician” using a camera angle aiming up, while he points into the camera, with his finger splayed in a gang-like sign, saying, something to the effect of “why would you go anywhere else?”, in a manner reminiscent of a “hip hop” rap personages. There are “Medical Doctors” who hawk accident clinics designed as a one stop shopping ground for those who get into accident, advertising their taking of assignments, knowledge of the “system” and all of the advertisers imply that people involved in accidents should consulted them, whether they think they were injured or not, so they can get money.
The court also notes that there are professionals, practicing in this court, in this area of law, that exhibit the highest degree of professional ethics and decry some of the above as well as other related matters as well.
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NEURO-IMAGING ASSOCIATES, P.A., Appellant, v. NATIONWIDE INSURANCE COMPANY OF FLORIDA, Appellee. Circuit Court, 15th Judicial Circuit (Appellate-Civil) in and for Palm Beach County. Case No. 2002AP001757AY. July 11, 2003. Appeal from the County Court in and for Palm Beach County, Robert Schwartz, Judge. Counsel: Michael G. Trerotola, Fort Lauderdale, for Appellant. Susan Kent, West Palm Beach, for Appellee.
(PER CURIAM.) AFFIRMED. (MAASS, CROW, and BARKDULL, JJ., concur.)
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