10 Fla. L. Weekly Supp. 826c
Insurance — Personal injury protection — Coverage — Exhaustion of benefits — Provider has no cause of action for recovery of benefits where medical provider failed to instruct insurer not to pay other medical benefits until benefits claimed by provider had been recovered or adjudicated, there is no evidence that exhaustion of benefits by insurer during pendency of provider’s suit for balance of reduced bills was undertaken in bad faith, assignment does not constitute appropriate notice to gain priority in distribution of benefits because it fails to reference specific bills in dispute, and fact that provider accepted reduced amounts paid by insurer contradicts claim that provider was disputing reasonableness of payment and requesting that benefits be set aside for future resolution
ROBERT C. NUCCI, M.D., on behalf of Carl Kalinsky, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 6th Judicial Circuit for Pinellas County, Small Claims Division. Case No. 522002SC009689XXSCSC. REF: 02009689SC. August 18, 2003. Karl B. Grube, Judge. Counsel: Paul Puzzanghera, St. Petersburg. Lisa S. Del Vecchio, Thompson Goodis Thompson Groseclose & Richardson, P.A., St. Petersburg.
[Affirmed at 13 Fla. L. Weekly Supp. 766a.]
ORDER GRANTING SUMMARY JUDGMENT
THIS MATTER came to be heard at Pretrial Conference on August 6, 2003 upon the Defendant’s Motion for Summary Judgment. The Court considered the argument of counsel and the affidavits and discovery, which were referenced by counsel in their argument. The Court thereupon found and ruled as follows:
1. The issue in this case is sufficiently crystallized to permit this Court to rule on the issue of Defendant’s liability for medical benefits as a matter of law. The undisputed material facts are as follows:
A. Plaintiff is a health care provider that took an assignment of benefits from the Defendant’s insured. A copy of the assignment was attached to Plaintiff’s Complaint marked Exhibit “A”. The Plaintiff has demanded payment for certain medical care and treatment that was rendered to the Defendant’s insured. At the time that Defendant filed its Motion for Summary Judgment, the Defendant’s insured’s benefits had been exhausted. Plaintiff’s assignor’s personal injury protection benefits were exhausted on February 25, 2003.
B. Other than the provisions of the insured’s assignment of benefits, which are general in nature, there is no evidence that the Plaintiff specifically instructed the Defendant not to pay other medical benefits until the benefits claimed by Plaintiff had been resolved or adjudicated.
C. Although Plaintiff’s Complaint was filed in December, 2002, and could have been subsequently amended, Plaintiff did not specify those bills which the Plaintiff requested the Defendant to retain benefits for payment of.
D. There is no evidence that the Defendant’s exhaustion of the insured’s benefits was undertaken in bad faith. To the contrary, the Defendant was obligated by law to pay benefits in a timely fashion and did so, thereby exhausting the insured’s benefits pursuant to the policy of insurance and Florida law.
2. This Court recognizes that the “English Rule” applies to assignees of PIP benefits according to State Farm Fire and Casualty v. Ray, 556 So.2d 811 (5th D.C.A. 1990). Under the English Rule however, the first assignee must give appropriate notice in order to gain priority for the distribution of benefits. The provisions of the assignment in the present case do not constitute appropriate notice, as they do not reference particular bills that may be in dispute. The Plaintiff also slumbered on his rights after filing the present case in stipulating to continuing the pretrial conference at which this case would have been set for trial prior to the exhaustion of benefits.
3. This Court also finds it of significance that the Plaintiff accepted payments in amounts that were reduced by the Defendant. Accepting payments of the reduced amounts contradicts the Plaintiff’s position that he was disputing the reasonableness of the payment and requesting that benefits be set aside for future resolution.
WHEREFORE, this Court finds that the undisputed material facts indicate that the Plaintiff has no cause of action for recovery of benefits, as Plaintiff’s assignor’s benefits have been exhausted and the Defendant has fulfilled its obligations pursuant to Florida law. It is further
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment be and the same is herewith granted. Judgment shall be entered in favor of the Defendant. It is further
ORDERED AND ADJUDGED that the Court will retain jurisdiction of this matter for a period of 60 days for the purpose of determining entitlement to costs and fees.
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