11 Fla. L. Weekly Supp. 650c
Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — Where policy limits were exhausted prior to insurer’s receipt of provider/assignee’s suit, provider did not provide notice prior to exhaustion of policy limits that it disputed or protested reductions or denials, and final benefits payment made to provider exceeded benefits potentially in controversy such that insurer’s reductions and denials resulted in no net effect upon total PIP benefits paid to provider under disputed claim, insurer’s motion for summary judgment is granted
FIRST CARE CHIROPRACTIC CENTER, INC., a/a/o Jean T. Joseph, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. SCO-03-2879. May 11, 2004. Leon B. Cheek, III, Judge. Counsel: Juan C. Gautier. Phil S. Yurecka, Reynolds & Stowell, St. Petersburg.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY DISPOSITION AND PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come on for hearing on April 27, 2004, on Defendant’s Motion for Summary Disposition and Plaintiff’s Motion for Summary Judgment in the above-styled matter, and the Court having reviewed the Court file, having heard arguments of counsel, having reviewed the case law and documents tendered unto the Court by counsel, and being fully advised in the premises, the Court makes the following findings:
1. The $10,000.00 in Personal Injury Protection (PIP) benefits available under the subject insurance policy with Defendant exhausted on April 9, 2003.
2. The PIP benefits available under the subject insurance policy exhausted via a payment of $674.61 to the Plaintiff by the Defendant on April 9, 2003, although payments also were made to other providers prior to that date.
3. The Defendant received service ofthe Plaintiff’s lawsuit forPIP benefits herein on April 10, 2003.
4. The PIP benefits available under the subject insurance policy thus exhausted prior to the Defendant’s receipt of the Plaintiff’s lawsuit.
5. The Plaintiff received and deposited this payment of the last available PIP benefits from theDefendant.
6. The Plaintiff did not notify the Defendant that the Plaintiff disputed or protested any of the previous reductions or denials made by the Defendant to the Plaintiff’s charges prior to the exhaustion of benefits.
7. Based upon the evidence and deposition testimony before this Court, the Plaintiff has not established that it provided notice to the Defendant that the Plaintiff disputed or protested any of the reductions or denials made by the Defendant to the Plaintiff’s charges prior to the exhaustion of benefits.
8. Under the case law provided to the Court, and based upon the Court’s review and consideration of the specific factual scenario involved in this lawsuit, the Plaintiff had a duty to provide notice to the Defendant that the Plaintiff disputed or protested the reductions or denials made by the Defendant to the Plaintiff’s charges prior to the exhaustion of benefits.
9. Instead, the Plaintiff received and deposited the reduced PIP benefits payment by the Defendant and continued to collect PIP benefits payments under the subject claim until the available benefits were exhausted via a payment to the Plaintiff, and only after the submission of additional charges to the Defendant did the Plaintiff seek recovery of the reductions or denials.
10. Based upon the calculations adduced at the hearing and the representations of counsel, the reductions and denials to the Plaintiff’s charges involved in this lawsuit total $90.00.
11. The final benefits payment made by the Defendant to the Plaintiff thus far exceeded the benefits potentially in controversy in the Plaintiff’s lawsuit herein.
12. Based upon the calculations made and review performed at the hearing, therefore, the Defendant’s reductions and denials to the Plaintiff’s charges resulted in no net effect upon the total amount of PIP benefits paid to the Plaintiff under the subject claim.
13. The Court finds that the Defendant did not waive the exhaustion of benefits defense in this case, based upon the affirmative defense incorporated within the Defendant’s Answer and Affirmative Defenses.
IT IS THEREFORE
ORDERED and ADJUDGED that Defendant’s Motion for Summary Disposition is GRANTED, based upon the exhaustion of PIP benefits available under the subject insurance policy, and that Plaintiff’s Motion for Summary Judgment is DENIED.
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