12 Fla. L. Weekly Supp. 237a
Insurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Subsequent claim for unpaid portion of medical bills — Where medical provider never requested that insurer escrow or reserve benefits for unpaid portions of reduced bills or put insurer on notice that it was contesting partial payments until suit was filed after exhaustion of policy limits, summary judgment is granted in favor of insurer
ADVANCED PAIN CLINIC, P.A., As assignee of Mildred Hicks, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. SCO-02-3759. December 21, 2004. Wayne J. Shoemaker, Judge. Counsel: Andrea Keleman, Bogin Munns & Munns, Orlando. Sandra Kotur, Adams, Blackwell & Diaco, Orlando.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY FINAL JUDGMENT
THIS CAUSE having come before the Court on November 8, 2004 on Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY’s, Motion for Summary Final Judgment and Motion for Protective Order, and this Court having heard argument of counsel, and reviewed the applicable case law and being otherwise duly advised in the premises, the Court hereby makes the following findings:
1. Plaintiff filed a PIP suit, as assignee of Mildred Hicks, against Defendant for unpaid and/or reduced medical bills for treatment rendered to Mildred Hicks as a result of injuries she allegedly sustained in an automobile accident which occurred on April 14, 2001.
2. Mildred Hicks was insured under a PIP policy of insurance issued by Defendant. This policy was in full force and effect on the date of the alleged accident and it had a $10,000 limit with a $250 deductible and no Med Pay coverage.
3. The policy provided PIP benefits in accordance with the requirements of §627.736 Florida Statutes.
4. PROGRESSIVE provided personal injury protection benefits to the Plaintiff for treatment rendered to Mildred Hicks.
5. Defendant was served with the instant lawsuit on April 12, 2002.
6. That on the 21st day of September 2001 PIP benefits under this policy of insurance were exhausted.
7. On June 6, 2001, Plaintiff billed cpt code 99244 which was reduced from $300.00 to $255.00 and on the same date Plaintiff also billed cpt code 97535 which was reduced from $60 to $41.62. In accordance with Ms. Hick’s policy and the Florida No-Fault statute, 80% of each of the reduced amounts was timely paid on June 21, 2001.
8. Defendant had a good faith basis in taking the usual and customary reductions as attested to in the Amended Affidavit of the Defendant’s Litigation Specialist filed on August 9, 2004.
9. At the time of receipt of Plaintiff’s bill for date of service June 6, 2001, there was a sufficient amount of PIP benefits remaining to cover the entire bill.
10. Plaintiff accepted an Assignment of Benefits from Mildred Hicks on June 6, 2001. Plaintiff never requested that Defendant escrow or reserve benefits for the usual and customary reductions.
11. On June 17, 2003, Defense counsel, on behalf of PROGRESSIVE, propounded the Defendant’s First Request to Produce which specifically requested the following:
“The entire medical file maintained for Mildred Hicks, including, but not limited to, all medical bills, billing records, sign in sheets, account billing ledger, any and all records, notes or other documentation of all previous treating physicians, and copies of any and all prescriptions issued to Mildred Hicks, including assignment of benefits and reservation of benefits requests or requests that benefits be placed in escrow sent to Progressive.”
12. On July 17, 2003 Plaintiff filed its responses to Defendant’s Request to Produce wherein it stated to “[p]lease see attached Plaintiff’s entire medical file for Mildred Hicks.” The twelve pages of documents produced to Defendant in response to the Defendant’s Request to Produce have been filed with the clerk of court under separate cover by Defense counsel. Nowhere contained within those documents produced by Plaintiff were any reservation of benefits requests or requests that benefits be placed into escrow.
13. Plaintiff never put Defendant, either verbally or in writing, on notice that it was contesting partial payment of the June 6, 2001 bill until March 29, 2002, when it filed this PIP suit. At that time, benefits were already exhausted.
14. Because PROGRESSIVE’s policy limit is $10,000 and the Plaintiff, on behalf of Mildred Hicks, exceeded this amount prior to the filing of this lawsuit, the Plaintiff’s interest is extinguished when the interests of the insured are extinguished. Jewett Orthopaedic Clinic, P.A. as assignee of Graciela Martinez v. USAA Casualty Insurance Co., Case No: SCO-01-1956, (Orange County, March 8, 2004); First Care Chiropractic Center, Inc., a/a/o Jean T. Joseph v. Progressive Express Insurance Co., Case No: SCO-03-2879, (Orange County, Florida, May 11, 2004) [11 Fla. L. Weekly Supp. 650c]; MTM Diagnostic, Inc., v. State Farm Mutual Automobile Insurance Co., 9 Fla. L. Weekly Supp. 581e, (Hillsborough County Circuit Court, appellate division, November 20, 2000); Centre for Alternative Medicine, Inc., etc. v. Allstate Insurance Co., Case No: 00-SC-3310, (Seminole County Circuit Court, appellate division, August 21, 2001); Neuro Imaging, Associates, P.A. v. Nationwide Insur. Co. of Fla., (Palm Beach County Circuit Court, appellate division, July 11, 2003).
After hearing argument of counsel, and after review of the entire court file, based upon the foregoing findings, it is hereby,
ORDERED AND ADJUDGED that:
1. Defendant’s Motion for Summary Final Judgment be and hereby is GRANTED. PLAINTIFF, ADVANCED PAIN CLINIC, P.A., as assignee of Mildred Hicks, shall take nothing from its Complaint and that Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY shall go hence without day.
2. This Court retains jurisdiction to tax costs and attorney’s fees.
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