10 Fla. L. Weekly Supp. 201a
Insurance — Personal injury protection — Coverage — Exhaustion of benefits — Action for unpaid medical bill where policy limits have been exhausted by payment for lost wages pursuant to insured’s reservation of benefits — Insured who executed assignment of benefits to medical provider had no right to receive PIP benefits for lost wages after date of assignment to detriment of assignee — Even if insured had reserved PIP benefits for lost wages prior to assignment, the assignment would have extinguished the reservation of benefits to the extent of payment for services provided by assignee to insured — Summary judgment entered in favor of assignee
TALLAHASSEE MRI, P.A., as assignee of KENNETH POTTER, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. CCO-014267. February 4, 2003. C. Jeffery Arnold, Judge. Counsel: Alexander Billias, Morgan Colling & Gilbert, P.A., Orlando, for Plaintiff. Julie Pardy, Ocoee, for Defendant.
FINAL ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter having come before the Court on January 6, 2003 on Defendant’s Motion for Summary Judgment and Supporting Memorandum of Law, (certificate date August 25, 2001), and Plaintiff’s Response to Defendant’s Motion for Summary Judgment and Cross-motion for Summary Judgment and Supporting Memorandum of Law, (certificate date September 21, 2001), the Court having reviewed the file, having heard the following argument of counsel and being fully advised in the premises:FACTS
1. The underlying issue in this case involves nonpayment of a medical bill that was timely submitted by Plaintiff to Defendant for date of service November 8, 2000 in the amount billed of $1,295.00.
2. On November 8, 2000, the insured/assignor Kenneth Potter executed an assignment of benefits to the Plaintiff.
3. On November 1, 2000, Kenneth Potter’s attorney allegedly contacted Defendant and requested, by telephone, that all remaining PIP benefits be held to pay wages.
4. On November 8, 2000, Kenneth Potter’s attorney forwarded correspondence to Defendant in a further attempt to reserve all remaining PIP benefits for lost wages.
5. In response, Defendant held all remaining PIP benefits to pay lost wages. Accordingly, Plaintiff failed to submit any payment to Plaintiff for date of service November 8, 2000.
6. After receiving the medical bill at issue in this case, Defendant paid lost wages to Kenneth Potter on three different dates after November 8, 2000. Defendant subsequently exhausted all remaining PIP benefits.
PROCEDURAL BACKGROUND
7. It is Plaintiff’s position that an assignment of benefits extinguishes an insured’s reservation of PIP benefits for lost wages, at least to the extent of payment for the treatment received pursuant to the assignment, and that once an insured assigns his PIP benefits to a medical provider, the insured has no right to make any claim on the contract unless authorized to do so by the medical provider. To hold otherwise would create the functional equivalent of an assignment of benefits that is subject to a lien. In support of its position, Plaintiff cites Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So. 2d 469 (Fla. 5th DCA 2001); Garcia v. State Farm Mut. Auto. Ins. Co., 766 So. 2d 430 (Fla. 5th DCA 2000); Livingston v. State Farm Mut. Auto. Ins. Co., 774 So. 2d 716 (Fla. 2nd DCA 2000); and State Farm Fire and Casualty Co. v. Ray, 556 So. 2d 811 (Fla. 5th DCA 1990).
8. It is Defendant’s position that Kenneth Potter’s reservation of PIP benefits for lost wages created a claim superior to the assignment of benefits. In support of its position, Defendant cites Bennett v. State Farm Mut. Auto. Ins. Co., 580 So. 2d 217 (Fla. 2d DCA 1991); Margiotta v. State Farm Mut. Auto. Ins. Co., 622 So. 2d 135 (Fla. 4th DCA 1993); Howell-Demarest v. State Farm Mut. Auto. Ins. Co., 673 So. 2d 526 (Fla. 4th DCA 1996); Holloway v. State Farm Mut. Auto. Ins. Co., 370 So. 2d 452 (Fla. 4th DCA 1979); State Farm Fire and Casualty Co. v. Ray, 556 So. 2d 811 (Fla. 5th DCA 1990); and Boulevard Nat’l Bank of Miami v. Air Metal Indus., Inc., 176 So. 2d 94 (Fla. 1965).
LAW AND ANALYSIS
IT IS HEREBY ORDERED AND ADJUDGED AS FOLLOWS:
9. The prior Order entered on December 10, 2001, by the Honorable Wilfredo Martinez, which denied without prejudice Defendant’s Motion for Summary Judgment and Plaintiff’s Motion for Summary Judgment, is hereby VACATED pursuant to an ore tenus motion brought by Plaintiff.
10. The English rule of priorities was adopted by the Florida Supreme Court in Boulevard Nat’l Bank of Miami v. Air Metal Indus., Inc., 176 So. 2d 94 (Fla. 1965).
11. Once Kenneth Potter executed the assignment of benefits to Plaintiff, he had no right to receive any PIP benefits for lost wages after November 8, 2000 to the detriment of the Plaintiff.
12. Even if Kenneth Potter had reserved his PIP benefits for lost wages on November 1, 2000, the assignment of benefits would have extinguished the reservation of PIP benefits for wages, at least to the extent of payment for the services provided to Kenneth Potter by the Plaintiff on November 8, 2000.
13. Based on the foregoing, Plaintiff’s Motion for Summary Judgment is hereby GRANTED.
14. Defendant’s Motion for Summary Judgment is hereby DENIED.
15. Defendant shall pay Plaintiff $1,036.00, (which is eighty percent (80%) of the amount billed, $1,295.00, for date of service November 8, 2000), plus the applicable statutory interest within thirty (30) days of the date of entry of this Order.
16. Accordingly, a Final Summary Judgment is hereby entered in favor of Plaintiff, TALLAHASSEE MRI, P.A., as assignee of KENNETH POTTER, and Plaintiff shall go hence without day.
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