11 Fla. L. Weekly Supp. 839a
Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — Summary judgment is granted in favor of insurer where policy limits were exhausted after medical provider filed suit — Questions and conflict certified
PREMIER OPEN MRI, LLC, on assignment from Deborah Braden, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 03-19164-CC-L. May 26, 2004. Artemeus McNeil, Judge. Counsel: William Saron, for Plaintiff. David B. Kampf, Ramey, Ramey & Kampf, P.A., Tampa, for Defendant.
AGREED ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BASED ONTHE EXHAUSTION OF BENEFITS
[Original Opinion at 11 Fla. L. Weekly Supp. 653b.]
THIS CAUSE, having come before the Court on April 20, 2004, on Defendant’s Motion for Summary Judgment based on the exhaustion of Benefits, and the Court, having reviewed the file and having heard argument of counsel and otherwise fully advised in the premise and the law, it is:
ORDERED AND ADJUDGED:
1. The undisputed facts reveal the policy benefits at issue exhausted on or about August 20, 2003, after Plaintiff filed this lawsuit on July 31, 2003.
2. This Court finds that the exhaustion of no-fault benefits must result in summary judgment in favor of Progressive and against Plaintiff based on the reasoning of Vincent DiCarlo, M.D. & Assoc.’s v. American Home Assur. Co., 11 Fla. L. Weekly Supp. 305b (Fla. 13th Jud. Cir., Jan. 20, 2004) and MTM Diagnostics, Inc. v. State Farm Mut. Auto. Ins. Co., 9 Fla. L. Weekly Supp. 581e (Fla. 13th Jud. Cir., Nov. 20, 2000).
3. Based on the above, this Court finds that Progressive is not required to pay in excess of the insured’s policy limits. Therefore, this Court finds that Progressive’s Motion for Summary Judgment shall hereby be granted.
4. Plaintiff shall take nothing from this action.
5. This Court shall retain jurisdiction over this matter to assess attorneys’ fees and costs.
6. The Court finds conflict between various courts in Florida and outside of Hillsborough County based on the cases presented by Plaintiff. Therefore, this Court certifies that this conflict is an issue of law which is of great public importance and certifies the above decision to the Second District Court of Appeals.
QUESTION NO. 1
Is an insured’s properly noticed and filed lawsuit for no-fault benefits, including claims for interest, costs and attorneys’ fees, completely extinguished by subsequent payments by the insurer which exhaust the remaining no-fault policy benefits?
QUESTION NO. 2
Absent statutory or contractual authority, to prevent an extinguishment of his lawsuit due to subsequent exhaustion of no-fault benefits, may an insured or his assigns, request the insurer to escrow funds which are in dispute, as addressed in Vincent DiCarlo, M.D. & Assoc.’s v. American Home Assur. Co., 11 Fla. L. Weekly Supp. 305b (Fla. 13th Jud. Cir., Jan. 20, 2004) and MTM Diagnostics, Inc. v. State Farm Mut. Auto. Ins. Co., 9 Fla. L. Weekly Supp. 581e (Fla. 13th Jud. Cir., Nov. 20, 2000) and, if requested, what are the obligations of the insurer, if any, to the insured and the various providers with or without assignments of benefits and with or without requests to escrow funds executed before and after the escrow request relied on in suits?
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