11 Fla. L. Weekly Supp. 1008b
Insurance — Personal injury protection — Coverage — Affirmative defenses — Exhaustion of policy limits — Estoppel — Insurer that never raised exhaustion of policy limits in answer and affirmative defenses is estopped from raising issue in motion for summary judgment — Had insurer raised exhaustion defense, court would have denied motion for summary judgment because benefits were available at time reduced payment was made
DREW MEDICAL, INC., as assignee of Mayra Reyes, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. CCO 02-9446. August 2, 2004. Jerry L. Brewer, Judge. Counsel: Peter P. Hagood, Payas, Payas & Payas, Orlando, for Plaintiff. Brian Foreman, Kingsford & Rock, P.A., Maitland, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT REGARDING EXHAUSTION
THIS CAUSE, having come before this Honorable Court on Defendant’s Motion for Summary Judgment regarding Exhaustion of Benefits, and the Court having reviewed the depositions, pleadings, documentary evidence and other items properly before the Court, having heard argument of counsel for the parties and otherwise being fully advised in the premises, the Court finds as follows:
1. The pleadings reveal that PROGRESSIVE filed Amended Affirmative Defenses on June 6, 2003. The affirmative defenses listed were as follows:
First Affirmative Defense
Plaintiff herein does not have standing to bring this action pursuant to any valid and properly executed Assignment of Benefits.
Second Affirmative Defense
PROGRESSIVE affirmatively alleges that the Plaintiff has failed to comply with all the conditions precedent to bringing this action and establishing a right to recovery for personal injury benefits pursuant to Florida Statute §627.736 which provides for payment of 80% of all reasonable expenses for medically necessary services.
2. Since that time PROGRESSIVE has not filed a Motion for Leave to Amend its Answer and Affirmative Defenses. Accordingly, the only affirmative defense of record at issue is in reference to standing.
3. PROGRESSIVE never raised exhaustion of benefits as an affirmative defense in this matter until the subject Motion for Summary Judgement was filed and therefore is estopped from doing so now.
4. The Court further finds that even if PROGRESSIVE had raised the affirmative defense of exhaustion of benefits, the Court would have denied PROGRESSIVE’s Motion for Summary Judgement based upon the fact that benefits were available at the time of said reduction.
ORDERED and ADJUDGED that
Defendant’s Motion for Summary Judgment regarding Exhaustion of Benefits, is hereby DENIED.
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