12 Fla. L. Weekly Supp. 382a
Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — Insurer’s motion for summary judgment based on exhaustion of policy limits is denied — Attachments to motion cannot be considered because they are not sworn or certified, and issues of material fact remain with regard to order in which insurer received claim submissions and whether insured was overpaid for wage loss
MEDICAL CONSULTANTS OF SOUTH FLORIDA, (Beryl Blake, Patient), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 02-18280 COCE (50). January 5, 2005. Peter B. Skolnik, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Matt Hellman, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the undersigned on September 30, 2004, on Defendant’s Motion for Summary Judgment, and the Court having heard argument of counsel, and being otherwise 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 June 16, 2004, the Defendant filed its Motion for Summary Judgment, and presented the following question for the Court’s consideration:
“Whether the Plaintiff, Medical Consultants of South Florida, is entitled to Payment from the Defendant, Progressive Express Insurance Company, when the Defendant has already paid the statutory limit of PIP in the amount of $10,000.00, pursuant to Florida Statute §627.736.”
3. In the instant case, the Defendant contends that its insured’s benefits were exhausted on or about May 1, 2002. 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).
4. 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
5. 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)).
6. Liability for overdue PIP benefits is established thirty days after receipt of the bill an 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).
7. In support of Defendant’s Motion for Summary Judgment, the Defendant attached a series of exhibits, including copies of checks made payable to various medical providers, a letter dated May 10, 2002, to the Plaintiff advising that PIP benefits had been exhausted, and a personal auto policy declarations page for the insured, Beryl Blake.
8. Pursuant to Florida Statute 90.801, this Court is not permitted to consider these attachments when ruling on a Defendant’s Motion for Summary Judgment. See Florida Rule of Civil Procedure 1.510(c) and Nichols v. Preiser, 849 So.2d 478 (Fla. 2nd DCA 2003), which holds that simply attaching documents that are not sworn to or certified to a motion for summary judgment does not satisfy the procedural requirements of Rule 1.510(e).
9. Moreover, the Plaintiff has shown that material issues of fact remain with regard to the order in which the defendant received claim submissions as well as the amount of wage loss paid to the patient. (The plaintiff claims that she was overpaid).
10. Because the Defendant has failed to file documents which have been properly sworn to or certified and because issues of material fact remain, the Defendant’s Motion is DENIED without prejudice.
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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).
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