11 Fla. L. Weekly Supp. 578b
Insurance — Personal injury protection — Coverage — Exhaustion of benefits — Where benefits were available at time bills were received by insurer, benefits were available thirty days thereafter, and benefits were available when suit was filed, insurer is precluded from raising defense of exhaustion of benefits — Summary judgment entered in favor of provider/assignee
OCEAN RIDGE CHIROPRACTIC, INC. a/a/o Ana Delvalle, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 02-17465 COCE 49. April 1, 2004. Kathleen D. Ireland, Judge. Counsel: Mary-Margaret Warren, Wites, Kapetan & Friedland, P.A., Deerfield Beach, for Plaintiff. Joe Eckelkamp, Matt Hellman, P.A., Plantation, for Defendant.
ORDER GRANTING PLAINTIFF’S AMENDED MOTION FOR SUMMARY JUDGMENT
THIS MATTER came before the Court on February 18, 2004 on Plaintiff’s Amended Motion for Summary Judgment. The facts in this case are as follows:
1. This is an action for personal injury protection (“PIP”) benefits filed on August 26, 2002.
2. Plaintiff submitted bills to Defendant who reduced Plaintiff’s bills paying only part of the actual amount billed.
3. At the time suit was filed, PIP benefits were available to pay Plaintiff’s bills. The PIP benefits were subsequently exhausted on bills received after Plaintiff’s bills. Defendant’s PIP Log dated September 21, 2002, almost a month after the instant suit was filed, indicates approximately $4059.43 remained in PIP benefits.
4. The Complaint in the instant suit states the amount in controversy as $1454.40.
5. PIP benefits were available to pay Plaintiff’s bills in their entirety at the time Defendant received Plaintiff’s bills and at the time the instant suit was filed.
6. On January 30, 2004, Plaintiff and Defendant entered into a joint stipulation that the only remaining affirmative defense was that the benefits under the policy were exhausted. It was further stipulated that Defendant does not contest that the services were not reasonable, related or medically necessary.
There is binding precedent on this issue in the 17th Judicial Circuit. Specifically, this Court relies upon Seminole Casualty Insurance Company v. Philip D. Schtupak, D.C., 9 Fla. L. Weekly Supp. 529 (Fla. 17th Judicial Cir. 2002). The Schtupak Court reasoned that, if, within the thirty days of receiving the provider’s bill, benefits had been exhausted, the insurance company could raise exhaustion of benefits as a defense even if it had not previously claimed that the benefits had been exhausted. However, the subsequent exhaustion of the policy limits after thirty-day period is not relevant. “When an insurer reduces a reasonable bill for necessary and related services, it does so at its own risk”. Id. The Schtupak Court cited to Physicians Diagnostic & Rehab v. State Farm Mutual Automobile Ins. Co., No. 97-2591(12) (Fla. 17th Cir. Ct. 1998).
Pursuant to Schtupak, if benefits are available at the time the bills are received and thirty days thereafter, the Defendant is precluded from raising the defense of exhaustion of benefits. This only precludes the raising of an exhaustion defense and does not preclude the insurer from contesting the services rendered were not reasonable, related or medically necessary. In this instant case, benefits were available at the time the bills were received by the insurer; benefits were available thirty days after Plaintiff’s bills were received; and benefits were available when the instant suit was filed. Therefore, Defendant is precluded from raising the defense of exhaustion of benefits.
This Court also relies upon Physicians First Choice v. Allstate, 10 Fla. L. Weekly Supp. 675 (Fla. 11th Cir. Ct. 2003). Physicians First Choice was an action by a medical provider to recover the balance of a bill partially paid by the insurer. The insurer claimed the amount charged by the medical provider exceeded the reasonable and customary amount. The court ruled that the insurer must pay overdue claims unlawfully withheld even if the policy limits have been exhausted. Id.
It is therefore ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is granted. The Defendant shall pay the amount of Plaintiff’s bills that were unlawfully reduced despite the fact that the PIP benefits have been exhausted under the subject insurance policy.
* * *
