12 Fla. L. Weekly Supp. 998a
Insurance — Personal injury protection — Coverage — Medical expenses — Hospital lien — Where hospital holding lien for limits of PIP policy submitted offer to insured through insurer that would have allowed insured to retain portion of benefits, insured rejected offer, and hospital requested that insurer send full payment of lien, insurer had no obligation to advise insured prior to paying benefits to hospital that there would be no further offers from hospital and that insured could either accept hospital’s offer or all of her PIP benefits would be taken by hospital
PROGRESSIVE CONSUMERS INSURANCE COMPANY, Defendant/Appellant, v. CYNTHIA HOUSER, Plaintiff/Appellee. Circuit Court, 3rd Judicial Circuit (Appellate) in and for Lafayette County. Case No. 04-45-CA. L.C. Case No. 01-10-CC. June 27, 2005. Counsel: Michael C. Clarke, Kubicki Draper, Tampa. Steven Kalishman, Gainesville. Glenn S. Banner, Jacksonville.
ORDER ON APPEAL
(JULIAN E. COLLINS, J.)Appellant appealed a Summary Judgment for Plaintiff entered by the Lafayette County Court on February 17, 2004, in which the Plaintiff was awarded damages of $4,290.33 plus accrued interest since October 1, 1998, together with attorney’s fees and costs. This court has now reviewed the record on appeal, the briefs submitted by respective counsel, heard oral argument on May 18, 2005, and has reviewed its notes from that hearing and the case law submitted by counsel. Because the facts in this case have, virtually from the outset, been stipulated to by the parties, the court will not recite them here at length.
Somewhat simplified, the crucial facts in this case are as follows. The Plaintiff (Houser) was injured in an accident and treated by Shands Hospital in Gainesville, which subsequently filed a Hospital Claim of Lien on Houser’s $10,000 in PIP funds pursuant to Section 262.20, Code of Ordinances County of Alachua, Florida. The Hospital’s attorney, however, submitted an offer through the insurance adjuster that would have permitted Houser to retain $4,290.33 of those funds. Ms. Houser rejected that offer, and the adjuster so advised Shands’ counsel, who then requested full payment of the $10,000 pursuant to the Hospital’s lien. The adjuster complied and sent the full $10,000 to Shands. Ultimately, Houser sued Progressive for breach of the insurance contract on the ground that the insurer had paid the entire $10,000 to the Hospital. At the hearing on motions for summary judgment — filed by both parties — the trial judge found that Progressive, through its adjuster, had a duty to advise Houser that there would be no further offers from the Hospital, and that she could either take the proffered $4,290.33 or all her PIP funds would be paid to the Hospital.
In the factual context of this case, this court can find no law, whether statutory or case law, that imposes such a duty on Progressive and its adjuster — nor is any law to that effect cited in the court’s summary judgment order. As Appellant’s Reply Brief emphasizes, Appellee has not responded directly to the case law — notably Fernandez v. So. Carolina Ins. Co., 408 So. 2d 753 (Fla. 3d DCA 1982) — holding that a hospital lien has priority over any individual PIP claimant’s attempt to apportion benefits. To be sure, Appellee did cite cases that talk about an adjuster’s “duty” to its company’s client, but none of those cases related to facts remotely resembling those in this case.
In light of the foregoing, it is this court’s ruling that the Summary Judgment for Plaintiff entered in this case is reversed, along with the award of attorney’s fees and costs, and that judgment be entered for the Defendant, Progressive Consumer Insurance. This case is remanded to Lafayette County Court to enter such further orders as may be consistent with this ruling, including addressing the issue of an award of attorney’s fees pursuant to Florida Statutes section 768.79. This court reserves ruling on the issues of appellate attorney’s fees.
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