12 Fla. L. Weekly Supp. 1092c
Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — Where PIP policy limits had been exhausted by time medical provider served complaint, there is no evidence that provider requested or instructed insurer not to pay other claims until benefits claimed by provider had been resolved or adjudicated, and there is no evidence insurer’s exhaustion of benefits was undertaken in bad faith, provider has no cause of action for recovery of benefits
TAMPA MEDICAL & REHAB CARE, LLC, On assignment from Lisandra Camjo, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 2004-00092-CC, Div. J. September 9, 2004. Gaston J. Fernandez, Judge. Counsel: Scott W. Dutton. William Saron.
SUMMARY JUDGMENT
This matter came on to be heard on DEFENDANT, PROGRESSIVE EXPRESS INSURANCE COMPANY’s Motion for Summary Judgment on the issue of exhaustion, and after having considered argument of counsel it is ORDERED AND ADJUDGED:
1. This is an action for PIP benefits of plaintiff health care provider for medical services rendered to defendant’s insured, Lisandra Camjo, as a result of a motor vehicle accident.
2. According to the affidavit of Judy Boggs, Litigation Adjuster for defendant, Progressive, benefits under the insurance policy that insured for the August 9, 2003 motor vehicle accident were exhausted on January 8, 2004. A PIP payout log was attached in support of the affidavit.
3. The issue in this case is sufficiently crystallized to permit this Court to rule on the issue of Defendant’s contractual responsibility for PIP benefits as a matter of law. The undisputed material facts are as follows:
4. Plaintiff is a health care provider that allegedly took an assignment of benefits from the Defendant’s insured.
5. The Plaintiff demanded payment for certain medical care and treatment that was rendered to the Defendant’s insured.
6. At the time the Plaintiff’s Complaint was served, the Defendant’s insured’s benefits had been exhausted.
7. Other than the provisions of the insured’s assignment of benefits, which are general in nature, there is no evidence that the Plaintiff specifically instructed or requested the Defendant not to pay other medical benefits until the benefits claimed by Plaintiff had been resolved or adjudicated.
8. There is no evidence that the Defendant’s exhaustion of the insured’s benefits was undertaken in bad faith.
9. To the contrary, the Defendant was obligated by law to pay benefits in a timely fashion and did so, thereby exhausting the insured’s benefits pursuant to the policy of insurance and Florida law.
10. MTM Diagnostic, Inc. v. State Farm Mutual Automobile Ins. Co., 9 Fla. L. Weekly Supp. 581e (Fla. 13th Cir. Ct. November 20, 2000) is controlling authority in this circuit. In MTM the Court states that the insurer is obligated to continue paying any contractual claims in accordance with the PIP statute.
11. The MTM line of analysis is supported other decisions in this circuit such as Images of the Bay, Inc. (a/a/o Ouen Keo) v. Allstate Ind. Co., 10 Fla. L. Weekly Supp. 120a (Fla. 13th Cir. Ct. December 9, 2002).
WHEREFORE, IT IS ORDERED AND ADJUDGED that summary judgment is entered in favor of Defendant, Progressive, based upon the uncontroverted materials fact that since PIP benefits are exhausted, the Plaintiff has no cause of action for recovery of benefits, and Defendant shall go hence without day. This court otherwise retains jurisdiction to consider the taxation of attorney fees and costs in favor of the Defendant.
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