11 Fla. L. Weekly Supp. 730b
Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — Where policy limits were exhausted prior to provider/assignee filing suit for unpaid portions of medical bills, insurer has fulfilled contractual obligation to insured and provider and is entitled to summary judgment — Attorney’s fees — Justiciable issues — Sanctions against provider under section 57.105 are not appropriate in light of divergent case law regarding issue
FLORIDA JOINT REPLACEMENT CENTER, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pasco County. Case No. 51-2003-SC-2305-WS, Division W. May 10, 2004. William G. Sestak, Judge. Counsel: Michael Johnson, Boca Raton, for Plaintiff. Randall A. Wainoris, Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SANCTIONS
THIS CAUSE coming before the Court on the Defendant’s Motion for Final Summary Judgment and Motion for 57.105 Sanctions; and the Court having reviewed the Motions; the Affidavit of Deborah Crosby and the attachments thereto; the Plaintiff’s Motion and Memorandum in Opposition to Defendant’s Motion for Summary Judgment; and the Court having reviewed the applicable case law submitted by the Parties; and, argument of Counsel; and the Court finding that:
1. The undisputed facts are that:
a) RENEE SMITH had a policy of insurance with Defendant. The policy of insurance included personal injury Protection (P.I.P.) benefits.
b) On July 3, 2001, RENEE SMITH was involved in a motor vehicle accident and began treating with various doctors and medical providers.
c) On March 30, 2001, RENEE SMITH executed an Assignment of Benefits form with the Plaintiff. (The Court does not know how or why the assignment was signed prior to the date of accident unless it is as a result of a scrivener’s error.) The Parties acknowledged the assignment of benefits.
d) Plaintiff submitted a bill for a date of service on November 15, 2001. The bill was in the amount of $146.82. Defendant reduced the bill to $57.48 and paid 80% of $57.48. Further, Plaintiff submitted a bill for a date of service on December 14, 2001. The bill was in the amount of $446.55. Defendant reduced the bill to $358.51 and paid 80% of $358.51.
e) Defendant continued to pay other medical providers bills as they were submitted.
f) On June 21, 2002, RENEE SMITH’s Personal Injury Protection Benefits were exhausted.
g) On July 31, 2003, Plaintiff filed their Complaint against Defendant for failure of the Defendant to pay the P.I.P. bills in accordance with the contract and Chapter 627.736(4)(b), Florida Statutes.
2. This Court would adopt the well-reasoned opinions in Neuro-Imaging Associates, P.A. v. Nationwide Insurance Co., 10 Fla. L. Weekly Supp. 738a (Florida 15th Judicial Circuit 2002); MTM Diagnostic, Inc. v. State Farm Mutual Automobile Insurance Co., 9 Fla. L. Weekly Supp. 581e (Florida 13th Judicial Circuit 2000). In fact, the facts in Neuro-Imaging appear to be identical to those in this case.
The undisputed facts support the position that Defendant has fulfilled its contractual obligation to RENEE SMITH and the Plaintiff, as the assignee of a portion of her P.I.P. benefits. Defendant is entitled to a Summary Final Judgment.
3. As to Defendant’s Motion for 57.105 Sanctions, Plaintiff’s claim was made in good faith as it applied to the material facts of this case. It did have a reasonable expectation of success. Each Party presented a number of cases that supported their respective positions. This Court does not find that Chapter 57.105 Sanctions to be appropriate based on the divergent case law throughout the State of Florida regarding the issue(s) presented to this Court.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion for Final Summary Judgment is GRANTED; and the Plaintiff, FLORIDA JOINT REPLACEMENT CENTER, shall take nothing by this action; and the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, shall go hence without day. It is further
ORDERED AND ADJUDGED that Defendant’s Motion for 57.105 Sanctions is DENIED; it is further
ORDERED AND ADJUDGED that the Court shall retain jurisdiction to determine the entitlement to, if any, and amount of court costs to be awarded to Defendant.
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