10 Fla. L. Weekly Supp. 1019a
Insurance — Personal injury protection — Exhaustion of benefits — Where action was filed by assignee after payment was denied as not reasonable, related, or necessary and, at the time, there were sufficient funds available under the policy to pay the claim, and where assignee filed action against insurer prior to exhaustion of benefits, insurer was not entitled to summary judgment based on the subsequent exhaustion of benefits
WEST COAST NEUROLOGY (a/a/o Frank Brancaccio), Plaintiff(s), vs. ALLSTATE INSURANCE COMPANY, Defendant(s). County Court, 6th Judicial Circuit in and for Pinellas County, Small Claims Division. Case No. 522002SC008334XXSCSC. REF. NO. 02-8334-SC-046. September 8, 2003. Henry J. Andringa, Judge. Counsel: Paul Puzzanghera and Angela M. Stone, Paul Puzzanghera, P.A., St. Petersburg, for Plaintiff. Johnathon Brereton-Hubbard, Fowler White Boggs Banker, P.A., St. Petersburg, for Defendant.
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
This case is before the Court on Defendant’s Motion for Summary Judgment. The Court has reviewed the pleadings and the authorities provided. The Court finds as follows:
1. Insured was injured in an automobile accident on May 10, 2002.
2. On May 28, 2002, insured assigned his rights under an insurance policy, issued by defendant, to the plaintiff. In return, plaintiff provided treatment to the insured.
3. Plaintiff submitted his claim to the defendant.
4. Defendant, based on a timely peer review, denied payment as not reasonable, related or necessary. Both sides agree that there were sufficient funds available under the insurance policy at that time to pay the claim.
5. Plaintiff filed this action.
6. While this case was pending, defendant continued paying claims under insured’s policy, ultimately resulting in an exhaustion of benefits.
7. Defendant now claims that exhaustion of benefits as the basis for summary judgment.
The Court rules as follows:
8. The motion is denied.
9. An action filed by an assignee prior to the exhaustion of insurance benefits precludes summary judgment based on the subsequent exhaustion of benefits.
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