12 Fla. L. Weekly Supp. 936a
Insurance — Personal injury protection — Failure to pay benefits — Error to grant insured’s motion for summary judgment where twelve affirmative defenses, all replete with numerous issues of fact, remained pending and where opposing party had not yet completed discovery — Reduced payments made by an insurer in accordance with a preferred provider agreement do not violate section 627.736(10)
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, v. LORNA JAGGON, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 02-23978 CACE (13). June 10, 2005. Appeal from the County Court in and for Broward County, Zebedee Wright, County Court Judge. Counsel: Douglas H. Stein, Anania, Bandklayder, Blackwell, Baumgarten, Torricella & Stein, Miami, for Appellant. Kate G. Burnett, Kate G. Burnett, P.A., and Jeffrey A. Nussbaum, Fort Lauderdale, for Appellee.
(LEROY H. MOE, J.) This is an appeal from the trial court’s Order, dated December 11, 2002, entering Final Summary Judgment for appellee. Appellee filed her Second Amended Complaint alleging to be insured under a policy of insurance issued by appellant affording Personal Injury Protection (“PIP”) coverage. Appellee further alleged that she sustained injuries in an automobile accident, and that appellant failed to pay PIP benefits as required by the insurance policy and Florida Statutes §627.736.
Appellant filed its Answer to the Second Amended Complaint, denying that it wrongfully failed to pay PIP benefits, and raising twelve (12) affirmative defenses, including that the bills of appellee’s medical providers were: (1) fully satisfied; (2) not reasonable, necessary or related to injuries allegedly sustained in the accident; (3) not submitted on statutorily mandated forms; (4) subject to a deductible; and (5) subject to reduction as payments to a preferred provider.
Appellee filed a Motion for Partial Summary Judgment seeking a determination that, appellant’s payment of reduced benefits to appellee’s medical providers as preferred providers, violated Florida Statutes §627.736(10). The trial court granted appellee’s Motion and entered Partial Summary Judgment.
Subsequently, appellee filed a Motion for Final Summary Judgment. Appellant responded highlighting what it believed to be issues of fact regarding its numerous affirmative defenses, and arguing that summary judgment should not be entered because it had yet to complete discovery, including eight (8) depositions of appellee’s medical providers.
To prevail on summary judgment, the movant must dispose of any fact issues raised by affirmative defenses, or establish that the affirmative defenses are legally insufficient. Manassas Invs., Inc. v. O’Hanrahan, 817 So. 2d 1080 (Fla. 2d DCA 2002); Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So. 2d 786 (Fla. 4th DCA 1995), rev. denied, 670 So. 2d 937 (Fla. 1996); Devos v. Steel Fabricators, Inc., 473 So. 2d 1320 (Fla. 4th DCA 1985). Here, the trial court erroneously granted appellee’s Motion for Final Summary Judgment where, appellant’s twelve (12) affirmative defenses, all replete with numerous issues of fact, remained pending.
As to appellant’s affirmative defenses regarding PPO reductions and Beech Street Corporation which the trial court found to be legally insufficient and upon which the trial court entered Partial Summary Judgment for appellee, in Allstate Insurance Co. v. Holy Cross Hospital, 895 So. 2d 1241 (Fla. 4th DCA 2005) the Fourth District recently held that, reduced payments made by an insurer in accordance with a PPO program such as that implemented by appellee in this case do not violate Florida Statute §627.736(10).
In addition, “a court should not enter summary judgment when the opposing party has not yet completed discovery.” Fleet Fin. & Mortgage, Inc. v. Carey, 707 So. 2d 949, 950 (Fla. 4th DCA 1998). See also Lubarsky v. Sweden House Props. of Boca Raton, Inc., 673 So. 2d 975 (Fla. 4th DCA 1996). Here, the trial court granted appellee’s Motion for Final Summary Judgment before appellant had the opportunity to complete discovery.
Therefore, the trial court’s Order granting appellee’s Motion for Final Summary Judgment and entering Final Summary Judgment, entered December 11, 2002, and Order granting appellee’s Motion for Partial Summary Judgment, entered August 21, 2002 are REVERSED, and the cause is REMANDED for further proceedings consistent herewith. Appellee’s Motion for Attorney’s Fees and Costs is hereby denied.
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