11 Fla. L. Weekly Supp. 1114a
Insurance — Personal injury protection — Exhaustion of benefits — Where there are competing claims for PIP benefits, insurer should pay benefits and apply deductible based upon order in which bills were received — Error to apply medical bill to deductible, rather than previously received claim for lost wages
OPEN MRI OF FLORIDA, LTD. d/b/a Delray Diagnostic Imaging, (Barbara Piper, Patient) Plaintiff, vs. OCEAN HARBOR CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-002625 CONO (70). August 30, 2004. Steven P. Deluca, Judge. Counsel: Cindy A. Goldstein and Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Robert O’Connell, for Defendant.
ORDER ON PLAINTIFF’S FOR SUMMARY JUDGMENT
THIS CAUSE having come before the Court on June 7, 2004, on Plaintiff’s Motion for Summary Judgment and the Court having heard argument of counsel and being fully advised in the premises, makes the following findings of fact and conclusions of law:
1. The above styled action arises out of a claim for unpaid Personal Injury Protection Benefits filed by the Plaintiff on July 31, 2003.
2. Defendant is the automobile insurance carrier for the insured Barbara Piper. Barbara Piper’s policy provides for PIP benefits in the amount of $10,000.00 with a $2,000.00 deductible.
3. Defendant received its first bill from Orthopedic Center of South Florida in the amount of $565.00 on October 4, 2001. 80% of the bill at $452.00 was properly applied to the deductible.
4. On October 22, 2001, Defendant next received the insured’s lost wage and salary verification in the amount of $13,176.07. Defendant did not pay this lost wage claim but instead, according to Defendant, “began its investigation in order to determine the merits of this claim.”
5. On October 29, 2001, after it received the insured’s lost wage claim, the Defendant received Plaintiff’s bill in the amount of $1,218.88. Instead of paying 80% of the claim at $975.10, the Defendant applied Plaintiff’s bill to the $2,000.00 deductible.
6. On October 31, 2001, Defendant received its fourth bill from Delray Modern Chiropractic in the amount of $2,877.00. Defendant applied a portion of this bill to the deductible and paid a portion of the benefits.
7. On November 16, 2001, Defendant paid Barbara Piper $7905.64, exhausting her benefits.
8. The Defendant claims that it was proper to apply Plaintiff’s bill to the deductible despite the fact that Defendant received Barbara Piper’s lost wage claim before it received Plaintiff’s bill. However, the insured’s claim for lost wages, rather than Plaintiff’s bill for medical services rendered, should have been applied to the $2,000.00 deductible.
9. The insurer may not randomly select the order in which it will pay or apply medical expenses to a deductible. Tower Health Center v. Lyndon Property Insurance Company, 7 Fla. L. Weekly Supp. 627b (Broward Cty. Ct. 2000). Where there are competing claims for personal injury protection benefits, the insurer should pay the benefits and apply the deductible based upon the order in which it received the medical bills. Id. (citing Boulevard National Bank v. Air Metal Industries, 176 So. 2d 94 (Fla. 1965); Pinnacle Medical Inc. v. Allstate Insurance Company, 5 Fla. L. Weekly Supp. 663a (Broward Cty. Ct. 1998). The insurer is required to set aside funds in the amount which would be due a medical provider (or an insured for lost wage claim) whose bill or claim has been challenged, at least until challenged to the denial of payment are resolved. Pinnacle Medical Inc. v. Allstate Insurance Company, 5 Fla. L. Weekly Supp. 663a (Broward Cty. Ct. 1998); Nu-Wave Diagnostics v. Fortune Insurance Company, 8 Fla. L. Weekly Supp. 229b (Broward Cty. Ct. 2001) (citing Pinnacle Medical Inc)). If the Defendant were permitted to pay the benefits as it chose, it would permit and sanction allowing an insurer to apply the payments of the medical bills in any manner it chose and in some cases, to exhaust benefits so as to deny payment to any medical providers who are not “favored.” See Pinnacle. The courts cannot be unwitting facilitators of such a manipulation. Id. (citing Bennet v. State Farm Mutual Automobile Insurance Co., 580 So. 2d 217 (Fla. 2nd DCA 1991)).
10. Thus, Barbara Piper’s lost wage claim should have been applied to the deductible. Even with applying a portion of the lost wage claim to the deductible and paying the remainder, there should have been sufficient funds to at least pay a portion of Plaintiff’s bill. Accordingly, there is no genuine issue as to any material fact with respect to the first affirmative defense raised by the Defendant in the Defendant’s Answer and Affirmative Defenses to Plaintiff’s Complaint and Plaintiff is entitled to judgment as a matter of law.1 Summary judgment as to the second affirmative defense is denied.
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1Defendant has not raised any issue as to the reasonableness or necessity of the bills.
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