12 Fla. L. Weekly Supp. 994a
Insurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Medical provider’s entitlement to statutory interest and penalties for overdue PIP benefits survives exhaustion of policy limits — Insurer’s motion for summary judgment denied
FIRST CHOICE MEDICAL CENTER, as Assignee of Carmen Martinez, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, a corporation authorized and doing business in the State of Florida, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-000531. June 27, 2005. J.R. Sloop, Judge. Counsel: Michael B. Brehne, Law Offices of Michael B. Brehne, P.A., Maitland, for Plaintiff. Fontini Manalokus, Thompson Goodis Thompson Groesclose & Richardson, P.A., Saint Petersburg, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came on for hearing April 29, 2004 on Defendant’s Motion for Summary Judgment, the Court having heard argument of counsel and being otherwise fully advised in the premises, hereby makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. Plaintiff is a medical service provider who provided medical services to Carmen Martinez as a result of a motor vehicle accident she was involved in on December 9, 2002.
2. At the time of the accident, Defendant had issued a standard automobile insurance policy that had coverages for personal injury protection benefits (PIP) that was in full force on the date of loss.
3. Progressive performed an investigation and found this claim to be a covered loss. Therefore, according to the policy, Defendant would be liable for 80% of the charges submitted by medical providers for care related to the motor vehicle accident.
4. The bill at issue in this lawsuit was for the first date of service Carmen Martinez had with Dr. David Libert, the medical director of First Choice Medical Center on December 17, 2002.
5. Defendant testified they received this bill and that it was accompanied by medical records and was submitted on the proper health insurance claim forms.
6. According to Defendant, the bill was paid, but at a rate less than 80% of the amount charged.
7. Progressive’s sole contention to paying Dr. Libert’s bill is that the charges submitted by Dr. Libert were unreasonable.
8. Specifically, Dr. Libert submitted charges for CPT code 99205, 72052, 72110 and 72072 for DOS December 17, 2002.
9. The charge for the 99205 was for $234.00, the charges for the 72052 was $201.00, the charge for the 72110 was for $170.00 and the charge for the 72072 was for $125.00.
10. For CPT code 72100, Dr. Libert charged $178.00 and Progressive only allowed $163.00.
11. The other bill at issue was the CPT code billed for 72052 in the amount of $201.00 however, Progressive only allowed $185.00.
12. At the time Dr. Libert submitted his bills for date of service December 17, 2002, Defendant maintained sufficient benefits in which to pay Dr. Libert’s initial bill.
13. To be sure, Defendant continued to process claims submitted by other medical providers on behalf of Carmen Martinez on January 22, 2003, January 15, 2003, and January 6, 2003 in the amounts of $140.00, $131.20 and $1.00 and a wage loss claims submitted by Carmen Martinez on or around April 24, 2003.
14. Defendant continued to process claims until the policy benefits exhausted.
15. Plaintiff initiated litigation to recover amounts owed to him form the December 17, 2004 date of service at a time when benefits were still available to make payment on his claim.
16. Defendant alleges Plaintiff cannot recover any sums for this date of service because they have exhausted the available policy limits after suit was filed.
17. Plaintiff claims the interest and penalty provision contained in Fla. Stat. §627.736(4)(c) survives the exhaustion of policy benefits. This Court agrees.
CONCLUSIONS OF LAW
The penalty provisions of statutory interest and attorney’s fees are always a part of a claim for overdue PIP benefits. To be sure, Fla. Stat. §627.736(4)(b) states:
Personal injury protection insurance benefits paid pursuant to this section shall be “overdue” if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.
Fla. Stat. §627.736(4)(c) demands:
all “overdue” payments shall bear simple interest at the rate established under Fla. Stat. §55.03 or the rate established in the insurance contract, whichever is greater, for the year in which the payment became overdue, calculated from the date the insurer was furnished with written notice of the amount of covered loss. Interest shall be due at the time payment of the overdue claim is made. Id.
The supreme court stated that the legislative intent evinced in the penalty provisions is clear: The provisions were intended to promote the prompt resolution of PIP claims by imposing several reasonable penalties on insurers who pay late. United Auto. Ins. Co. v. Rodriguez 808 So. 2d 82, 85 (Fla. 2001). Thus, if an insurer does not have reasonable proof that they are not responsible for payment of a claim and does not pay within 30 days of the claim submission, they are exposed to the statutory penalties attendant to an “overdue” claim. Jones v. State Farm Mut. Auto. Ins. Co., 694 So. 2d 165 (Fla. 5 DCA 1997).
Most recently, the Fifth DCA reiterated that the holding in United Automobile does not mean that an insurer is automatically obligated to pay a claim when the thirty-day period has passed, the insurer may contest the claim after the thirty days, but accepts the risk that if the insurer pays the contested claim, the insurer will be liable to pay interest on the claim and the insured’s attorney’s fees. January v. State Farm Mut. Ins. Co., 838 So. 2d 604, 607 (Fla. 5 DCA 2003).
As such, the PIP insurer is given thirty days to investigate and to either pay the claim or discover the facts that warrant a refusal to pay. Id. at 606. “If it does not do so, then the claim is overdue and the statutory penalties for failing to pay the claim timely (interest and fees) are due.” Id.
Nowhere in the statute or cases stemming from it, is there an interpretation that extinguishes the clear statutory liability imposing penalties and interest on overdue claims. By the plain language of the statutory definitions, the claims submitted by Plaintiff are now “overdue” and if the charges are found to be “reasonable” or if a jury decides defendant did not have “reasonable proof” to reduce the bills, Defendant is liable for statutory interest on the unpaid sums and attorney’s fees. See, Walter A. Afield, M.D., P.A. v. USAA Casualty Ins. Co., 10 Fla. L. Weekly Supp. 546a (County Crt. 13th Judicial Cir. Case No. 2002-6072 Div. H Feb. 2003) (Although PIP benefits have been exhausted, the Plaintiff is entitled to receive statutory interest and attorney’s fees and costs): Steven A. Wilson, D.C. v. Maryland Casualty Co., 10 Fla. L. Weekly Supp. 532b (County Crt. 6th Judicial Cir. Case No. 01-1014 CO-42 Feb. 21, 2003) (Although the PIP benefits have exhausted, Plaintiff is entitled to statutory interest for the late payments made and the court reserves jurisdiction on the amount to attorney’s fees and costs).
Lastly, statutory interest is an element of damage in any PIP suit and inures to the benefit of the insured. Leigh Taylor v. Fla. Farm Bureau, 8 Fla. L. Weekly Supp. 209b (County Crt. 18th Judicial Cir. Case. No. 99-CC-3779-20 Nov. 27, 2000). As such, this court can not ignore the statutory requirements imposing interest as a penalty for eventually paying an overdue claim as this would deprive Plaintiff of a legislatively granted right that has been in existence since 1971.
Therefore it is ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion for Summary Judgment regarding the exhaustion of policy limits is hereby DENIED.
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