11 Fla. L. Weekly Supp. 305b
Insurance — Personal injury protection — Coverage — Denial — Exhaustion of policy limits — Escrow request which failed to specify amount for insurer to set aside was insufficient notice to insurer
VINCENT DICARLO, M.D. & ASSOCIATES, a/a/o, Bonita Thurston, Appellant, vs. AMERICAN HOME ASSURANCE CO., Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 03-4949. Division X. L.T. Case No. 02-13083-SC. January 20, 2004. Vivian Corvo Maye, Judge. Review of a final order of the County Ct., Hillsborough County. Counsel: D. Daryl Romano, Tampa, for Appellant. Hinda Klein, Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Appellee.
Appellant DiCarlo seeks review of a summary judgment entered against it by the county court. The instant action arises from a complaint filed by the Appellant for the non-payment and/or reduction of benefits due under a policy of insurance issued in compliance with Florida’s No-Fault insurance statute, section 627.736, Florida Statutes.
Appellant filed the action in the county court pursuant to an assignment of benefits from an insurance policy issued to Bonita Thurston for treatment for injuries related to an automobile accident occurring on February 12, 2002. The validity of the assignment is not disputed. However, several claims of Appellant were reduced, and others went unpaid entirely when benefits under the policy were exhausted. Appellant contends that it placed Appellee insurance company on notice of a request to escrow the disputed funds in advance of the exhaustion of the benefits when it filed the subject lawsuit, and that benefits were wrongfully exhausted.
The subject escrow request was not a separate request; it was in the body of the assignment. It said, in pertinent part
“[t]o avoid exhaustion of No Fault Benefits while Assignees pursue its right under this assignment, I direct my insurance company to set aside and place in escrow any disputed amounts or reductions until the resolution of such dispute.”
Appellee moved for summary judgment on the grounds that, among other things, benefits had been exhausted and that the alleged notice to escrow was insufficient because the only notice of the escrow request was attached to the complaint. Even then, the request lacked specificity in that it did not advise the insurer as to the amount of the insured’s benefits to place in escrow. The trial court concluded that the lawsuit was insufficient notice to the insurer but did not state its reasons for that conclusion. Appellant contends that the trial court’s decision was error. We disagree and affirm the judgment of the trial court.
The sole issue before the Court is whether the complaint, to which a general escrow request was attached, constituted sufficient notice thereof to the insurer. We conclude that under the facts of this case, it did not.
Here, the complaint was served on the insurance commissioner four business days before exhaustion of benefits. The complaint did not demand payment of a specific figure. It is the lack of specificity of the escrow request on which we focus. The failure to specify an amount for the insurer to set aside puts the insurer at risk of breaching its contract. For example, if the insurer errs by escrowing too much, it may fail to pay legitimate claims, and if too little, it puts itself at risk with respect to the one on whose behalf the escrow request was being made. It is effectively a no-win situation for the insurer. Appellant argues that the insurer was required to set aside disputed amounts, but never notified the insurer what the disputed amount was. In that respect, notice was indeed insufficient.
We note that the timing of service of process on the insurer may also have provided insufficient notice to the insurer because it predated exhaustion of benefits so closely. However, because the lack of specificity by itself constitutes insufficient notice, we do not reach that question or the question as to whether a lawsuit, without more, constitutes sufficient notice if timely filed. Inasmuch as benefits were exhausted prior to meaningful notice of the escrow request, we affirm the decision of the trial court. MTM Diagnostics, Inc. v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 581 (Fla. 13th Jud. Cir., Nov. 20, 2000).
It is ORDERED that the decision of the trial court is AFFIRMED. (Levens and Holder, JJ., concur.)
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