12 Fla. L. Weekly Supp. 383a
Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — Where there is no dispute that insurer paid out in excess of policy limits prior to medical provider filing suit, insurer is entitled to summary judgment — Insurer was entitled to reapportion overpayment of PIP benefits to outstanding Medpay coverage
LORNA GRANT, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-4050 COSO 62. January 24, 2005. Robert W. Lee, Judge. Counsel: Vincent J. Rutigliano, Hollywood, for Plaintiff. Matt Hellman, Plantation, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY FINAL JUDGMENT
THIS CAUSE came before the Court on December 17, 2004 for hearing of the Defendant’s Motion for Summary Judgment, and the Court’s having reviewed the Motion, attachments thereto, and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, finds as follows:
Background. On September 24, 2003, the Plaintiff filed her Amended Complaint claiming to have been involved in an automobile accident entitling her to unpaid PIP benefits. She further claims that she sustained injuries as a result of the accident which required medical treatment. On October 25, 2004, the Defendant insurer filed its Motion for Summary Judgment claiming that benefits under the insurance policy have been exhausted. Because there is no disputed material fact that the insurer paid out in excess of the total policy limits prior to the filing of this lawsuit, the insurer is entitled to a summary final judgment in its favor.
The following facts are undisputed:
1. The insurer provided to the Plaintiff a policy of no-fault automobile insurance which was in effect on the date of the accident. (Defendant’s Response to Request for Admissions ¶¶3, 13).
2. The policy provided $10,000.00 in personal injury protection (PIP) coverage and $5,000.00 in medical payments (Medpay) coverage. (Affidavit of Jishel Wylie, Exhibit B to Defendant’s Motion for Summary Judgment; Declarations Page, Exhibit A to Defendant’s Motion.)
3. Defendant has made payments on Plaintiff’s behalf in the total amount of $15,831.52. Of these, $10,860.46 were paid out in PIP benefits and $4,971.06 were paid out in Medpay benefits. These payments were made from September 18, 2002 to October 11, 2002. (PIP Payout Log attached as Exhibit to Affidavit of Wylie).
4. If the overpaid portion of PIP benefits were disregarded, the insured would have $28.94 remaining in unpaid Medpay benefits. (Deposition of Wylie, p. 33, ll. 20-22; Affidavit of Wylie).
5. This action was filed on June 24, 2003. (Complaint, p. 1.)
The Defendant argues that because the total amount of benefits paid ($15,831.52) exceeds the total amount of coverage ($15,000.00), it is entitled to a summary judgment in its favor. The Plaintiff counters that the Defendant should not be able to “carry over” the overpaid portion of PIP benefits to the nominal outstanding Medpay benefits.
Conclusions of Law. Under Florida law, a PIP insured is entitled to a reapportionment of benefits so that the maximum coverage under the policy is realized. Bennett v. State Farm Mutual Automobile Ins. Co., 580 So.2d 217, 218 (Fla. 2d DCA 1991). In Bennett, the insurer exhausted PIP benefits first before applying any claim to Medpay coverage. Once the PIP benefits were gone, the insurer claimed that the insured no longer had any benefits for lost wages. The appellate court required the insurer to reapportion the benefits so that maximum coverage was afforded, stating that “State Farm should have been more concerned about their obligation to provide their insured with the maximum benefits allowable under their contract.” By failing to reapportion, the insured was “not receiving the full value of the contract for which she bargained and paid premiums.” Id.
The Plaintiff argues that the holding of Bennett is limited to those situations in which the insured, rather than the insurer, is seeking to reapportion benefits. The Court disagrees. As noted by Progressive, the Bennett case offers one example in which reapportionment is appropriate and does not hold that reapportionment is limited to this one situation.
The undisputed record establishes that at the time she filed her lawsuit, the Plaintiff had already received in excess of $15,000.00 paid on her behalf, the maximum benefits available under her policy. Neither party was able to provide the Court any case law dealing with the precise issue in this case. The Court notes, however, that in Michigan the appellate courts have ruled that an insurer under a no-fault policy is entitled to recover overpaid insurance benefits in recoupment. Adams v. Auto Club Ins. Ass’n, 154 Mich. App. 186, 194, 397 N.W. 2d 262, 265 (1986). This is in accordance with the general common law that overpayment of insurance benefits can be remedied. See Unum Life Ins. Co. of America v. O’Brien, 2004 WL 2283559 *3 (M.D. Fla. 2004) [17 Fla. L. Weekly Fed. D1168a]. The O’Brien court noted the underlying policy for applying the general common law to statutory insurance requirements: “[i]t is difficult to believe that Congress intended beneficiaries to be rewarded by overpayments to which they are not entitled.” Id. at *4. This Court sees no reason not to extend this rationale to the Florida Legislature and the PIP law.
As a result, this Court holds that, in this particular case, the insurer is entitled to reapportion $28.94 in overpayment of PIP benefits to the outstanding Medpay coverage. As of the filing of the Complaint in this action, the Plaintiff had exhausted her benefits. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment is GRANTED. A Summary Final Judgment shall issue in favor of the Defendant. The Defendant is hereby directed to submit a proposed final judgment to this Court.
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