12 Fla. L. Weekly Supp. 121b
Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — Escrow request — Specificity — No error in determining that escrow request was insufficient where request authorized insurer to reserve any disputed or unpaid medical bills but did not specify amount to be placed in escrow, and record does not reflect whether request was provided to insurer in advance of suit or whether medical provider contested reductions in advance of filing suit
FRANCISCO GOMEZ, M.D., P.A., as assignee of Noemia Brunet, Plaintiff/Appellant, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant/Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 04-1792, Division X. L.C. Case No. 03-6286. October 20, 2004. Emmett L. Battles, Judge. Review of a final order of the County Ct., Hillsborough County. Counsel: Timothy A. Patrick, Tampa, for Appellant. Valeria Hendricks, Tampa, for Appellee.
Appellant appeals a final judgment in favor of Appellee. The County Court for Hillsborough County concluded that the escrow request Appellant asserted as grounds for the summary judgment was insufficient. We agree and affirm the decision of the trial court. The facts are as follows.
The following facts are undisputed. Noemia Brunet, an insured of Appellee, was injured in a covered accident in November 2002. She received treatment from Appellant Provider, and assigned benefits to him. Appellee paid somewhat less than the provider’s entire claim on the ground that the charges were excessive. On April 23, 2003, Appellant filed suit, attaching the assignment and general escrow reservation to the complaint. On July 31, 2003, insurance benefits were exhausted, and on January 21, 2004, final summary judgment was rendered in favor of Appellee. This appeal followed.
Appellant contends that summary judgment was error because (1) the insurer must prove that the insured’s/assignee’s PIP benefits are exhausted; (2) the insurer must prove that the insured, or their medical provider if on assignment, submitted a formal request to the insurer instructing that insurer to escrow any amounts which the insurer reduces or denies, and (3) that the insurer prove that the subject exhaustion of benefits was proper. Appellant cites MTM Diagnostics, cited supra, in support of this contention. Appellant claims that the insurer did not prove these elements; therefore, summary judgment was error.
Appellee asserts that Appellant did not contest the claim reductions and did not prove that it furnished the insurer with a valid escrow request prior to the exhaustion of the insured’s benefits, as required by MTM Diagnostics. Additionally, Appellee asserts that MTM Diagnostics does not shift the burden of proof to Appellee as Appellant claims. Rather, to avoid summary judgment, it is incumbent on the Provider to offer evidence that it requested Progressive to escrow any disputed amounts due prior to benefits being exhausted. See also State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So. 2d 1244 (Fla. 2d DCA 2002) (insured bears burden of establishing that charges are reasonable if insured bring suit against PIP insurer which refused to pay medical expenses). The provider did not do so, and summary judgment was proper.
This Court’s decision in Vincent DiCarlo, M.D. & Assocs. v. American Home Assurance Co., 11 Fla. L. Weekly Supp. 305 (13th Jud. Cir. Ct. Jan. 20, 2004) is controlling here. The facts are nearly identical, except that in DiCarlo benefits were exhausted within days after suit was filed, and quite possibly, before the insurer had been served. However, the time between the filing of the lawsuit and the exhaustion of benefts was not an issue because of the lack of specificity in the escrow request. About a general escrow request, such as the one attached to the complaint in this case, this Court said:
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.
DiCarlo.
The general escrow request in the assignment that was attached to the complaint in this case is similarly nonspecific. It stated in pertinent part:
I hereby authorize my insurance carrier to set aside a reserve and/or escrow any disputed/unpaid medical bills owed to this medical provider, so that policy benefits are not subsequently to be exhausted.
We note that it provides no amount to be placed in escrow and that the record does not reflect that it was provided to the insurer in advance of the lawsuit. The record is also silent as to whether Appellant contested the reductions in any manner in advance of his filing this lawsuit. This gives rise to the question: how can a party sue for a breach it has not notified the other party of having committed? This notion ascribes powers of mind reading to insurers. An insurer cannot escrow benefits if the insured, or the insured’s assignee, does not specifically request it to escrow the amount in dispute. A lawsuit should not be the first indication that there is a dispute as to payment.
Under the circumstances of this case, it would be fruitless to engage in a policy discussion as Appellant attempts. On the authority of this Court’s decisions in DiCarlo and MTM Diagnostics, it is
ORDERED that the decision of the trial court is AFFIRMED. (Maye and Baumann, JJ., concur.)
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[Editor’s note: Lower court judgment published below.]
FRANCISCO M. GOMEZ, M.D., P.A., (as assignee of Noemia Brunet), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 03-6286-SC, Division I. January 21, 2004. Charlotte W. Anderson, Judge. Counsel: Timothy A. Patrick, Tampa, for Plaintiff. Randall A. Wainoris, Tampa, for Defendant.
FINAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on December 15, 2003 on the motion of Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, for final summary judgment and the Court having heard argument of counsel, having considered the authorities, and being otherwise fully advised in the premises, the Court makes the following findings:
1. This is an action for PIP benefits, filed on April 23, 2003, which the Plaintiff brought as assignee of Noemia Brunet.
2. According to the affidavit of Deborah Crosby, Litigation Adjuster for defendant, Progressive, benefits under the insurance policy that insured Noemia Brunet for the November 13, 2002 motor vehicle accident were exhausted on July 31, 2003.
3. An assignee’s interests under a PIP policy are extinguished when the interests of the insured/assignor are extinguished. MTM Diagnostic, Inc. v. State Farm Mutual Automobile Insurance Co., 9 Fla. L. Weekly Supp. 581e (Hillsborough County Circuit Court November 20, 2000).
4. Once benefits have been exhausted the insurance carrier is relieved of any further liability under the insurance contract.
5. Plaintiff is precluded from seeking any statutory interest as provided under Florida Statute Section 627.736(4)(c).
ADJUDGED that Final Summary Judgment is entered in favor of Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, that Plaintiff, FRANCISCO M. GOMEZ, M.D., P.A., (as assignee of Noemia Brunet), take nothing by this action, and Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, go hence without day.
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