12 Fla. L. Weekly Supp. 172a
Insurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Subsequent claim for unpaid bills — Summary judgment — Where benefits were available at time provider’s bills were received and thirty days after receipt of bills when liability for overdue PIP benefits was established, insurer is precluded from raising defense of subsequent exhaustion of benefits — Provider’s motion for partial summary judgment is granted
HOWARD J. GELB, M.D., P.A., F.A.A.O.S., (Steve Fitzgerald, Patient), Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04000721 (50). September 29, 2004. Peter B. Kolnik, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Joseph Peduzzi, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE having come before the Court on August 31, 2004, on Defendant’s Motion for Final Summary Judgment and Plaintiff’s Motion for Partial Summary Judgment and the Court having heard argument of counsel and being fully advised in the premises, makes the following findings of fact and conclusions of law:
1. The above-styled cause of action arises out of a claim for unpaid personal injury protection benefits filed by the Plaintiff.
2. On or about May 13, 2004, Defendant filed its Motion for Summary Final Judgment contending that Defendant exhausted the PIP benefits prior to Plaintiff filing suit and thus, it is entitled to judgment as a matter of law.
3. On May 27, 2004, Plaintiff filed its motion for summary judgment on the same issue. This Court has considered the case law submitted by both parties in making its ruling.
4. Florida follows the English Rule on priority among assignees claiming an interest in the same fund which accords priority in the order in which assignees give notice to the debtor. Pinnacle Medical Inc. D/b/a/ Iso Data Diagnostics v. Allstate Insurance Company, 5 Fla. L. Weekly Supp. 700a (Broward Cty. Ct. 1998) [J. Herring] (citing Boulevard National Bank of Miami v. Air Metal Industries, Inc., 176 So. 2d 94 (Fla. 1965). The English rule applies among assignees of PIP benefits. Id.(citing State Farm Fire and Casualty Insurance Company v. Ray, 556 So. 2d 811 (Fla. 5th DCA 1990).
5. When someone shows that they have assignment and they are claiming a priority by virtue of notice of that assignment to the debtor, it is incumbent on the debtor to establish that there were competing assignments sufficient to exhaust the balance of the fund which the debtor received before receiving the claim at issue. Id. If ample funds remain to pay the entire claim if valid, then Defendant should place said funds in the court registry. See Id.1
6. The insurer is required to set aside funds in the amount which would be due a medical provider whose bill or claim has been challenged, at least until challenges to the denial of payment are resolved. Pinnacle Medical Inc. v. Allstate Insurance Company, 5 Fla. L. Weekly Supp. 663a (Fla. 17th Jud. Cir. 1998); Nu-Wave Diagnostics v. Fortune Insurance Company, 8 Fla. L. Weekly Supp. 229b (Broward Cty. Ct. 2001) (citing Pinnacle Medical Inc.); Tower Health Center v. London Property Insurance Company, 7 Fla. L. Weekly Supp. 627b (Broward Cty. Ct. 2000). If the Defendant were permitted to pay the benefits as it chose, it would permit an insurer to apply payment on the medical bills in any manner it chooses and in some cases, to exhaust benefits so as to deny payment to any medical providers who are not “favored”. See Pinnacle. The courts cannot be unwitting facilitators of such a manipulation. id. (citing Bennet v. State Farm Mutual Automobile Insurance Co., 580 So. 2d 217 (Fla. 2nd DCA 1991)).
7. Liability for overdue PIP benefits is established thirty days after receipt of the bill and subsequent exhaustion of the benefits is irrelevant. Seminole Casualty Insurance Company v. Schtupak, D.C., 9 Fla. L. Weekly Supp. 529a, (Fla. 17th Jud. Cir. 1998) (citing Pinnacle Medical Inc. v. Allstate Insurance Company, 5 Fla. L. Weekly Supp. 663a (Fla. 17th Jud. Cir. 1998)); Nu-Wave Diagnostics v. Fortune Insurance Company, 8 Fla. L. Weekly Supp. 229b (Broward Cty. Ct. 2001); Pinnacle Medical Inc. d/b/a/ Iso Data Diagnostics v. Allstate Insurance Company, 5 Fla. L. Weekly Supp. 700a (Broward Cty. Ct. 1998) [J. Herring]; 2001) (citing Pinnacle Medical Inc.); Tower Health Center v. Lyndon Property Insurance Company, 7 Fla. L. Weekly Supp. 627b (Broward Cty. Ct. 2000); See also Physicians First Choice Interpretation, Inc., 10 Fla. L. Weekly Supp. 675c (Fla. 11th Jud. Cir. 2003).
8. Where benefits are available at the time bills were received by the insurer, benefits are available thirty days thereafter, and benefits are available when suit is filed2, insurer is precluded from raising the defense of exhaustion of benefits. Ocean Ridge Chiropractic, Inc. (Ana Devalle) v. Progressive Express Insurance Company, Case No. 02-17465 COCE 49 (Broward Cty. Ct. April 2004).3
9. The Shtupak case is binding precedent on this issue in the 17th Judicial Circuit.
10. This Court considered the affidavit of adjuster Linda Barron filed in support of Defendant’s motion. An affidavit filed in support of summary judgment must be based on personal knowledge and not on factual conclusions or conclusions of law. When an affidavit is based upon a person’s understanding of the underlying issues and/or the person’s “opinion,” it should be stricken. Florida Department of Financial Services v. Associated Industries Insurance Company, Inc., 868 So. 2d 600 (Fla. 1st DCA 2004). While the affidavit is based on conclusions of law, the Defendant could amend its affidavit and request that this Court revisit the issue. Accordingly, this Court has considers the affidavit in its ruling and thereby avoids any appealable controversy.
11. Defendant’s Motion for Summary Judgment is DENIED. Plaintiff’s Motion for Partial Summary Judgment is GRANTED.
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1There is no statutory or common law requirement that Plaintiff demand that the disputed amount be reserved or escrowed. Celpha Clinic, Inc. v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 113a (Hillsborough Cty. Ct. 2003) (disapproving MTM Diagnostics, Inc. v. State Farm Mutual Automobile Insurance Company, 9 Fla. L. Weekly Supp. 581e (Fla. 13th Jud. Cir. Ct. App. 2000).
[Editor’s note: There is a superscript “2” in paragraph 8, but no corresponding footnote.]
3In Ocean Ridge, the court relied on Seminole Casualty Insurance Company v. Schtupak, D.C., 9 Fla. L. Weekly Supp. 529a, (Fla. Jud. Cir. 1998) wherein the Schtupak court advised, “When an insurer reduces a reasonable bill for necessary and related services, it does so at its own risk.”
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