13 Fla. L. Weekly Supp. 1223a
Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — Medical provider’s claim that, despite fact that no benefits can or would be paid because policy limits have been exhausted, insurer can and should be required to pay interest on benefits provider sought is contrary to PIP statute which provides that interest is due at time payment of overdue claim is made — Provider cannot be entitled to attorney’s fees where claim for benefits and interest must be denied
ABACOA PHYSICAL MEDICINE (Patient: Pilar Alvarez), Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50 2006 SC 003904 XXXX MB RF. September 29, 2006. James L. Martz, Judge. Counsel: Dena Sisk Foman, Vernis & Bowling of Palm Beach, P.A., North Palm Beach. Robert H. Stein, Young & Adams, Boca Raton.
ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on September 7, 2006, for a hearing on Defendant’s Motion for Final Summary Judgment. The Court, having heard argument of counsel, and otherwise having been fully advised, hereby finds as follows:
1. Plaintiff filed this lawsuit on or about March 27, 2006, to recover personal injury protection (PIP) benefits relative to chiropractic treatment provided to Defendant’s insured. Plaintiff claimed entitlement to the benefits in question pursuant to an Assignment of Benefits.
2. Defendant paid benefits to Plaintiff, but paid less than the amounts claimed, relying on Fla. Stat. Sec. 627.736(1)(a), which required Defendant to pay 80% of all reasonable expenses for medically necessary medical services. Defendant asserted that it fulfilled its statutory and contractual obligations in full, and that any additional amounts claimed by Plaintiff were more than what it determined to be “reasonable.”
3. Just prior to the filing of this lawsuit, Defendant received a claim for benefits from another provider, which Defendant paid in part, and this payment to this other provider exhausted all benefits available to the insured under the subject insurance policy. This final payment was made after this lawsuit had been filed.
4. At the hearing on Defendant’s Motion, there was no dispute as to the foregoing facts. Thus, the parties agreed that when this lawsuit was filed, there were benefits remaining under the policy of insurance in question, and that benefits have now been exhausted. Defendant’s Motion for Summary Judgment is predicated on this exhaustion of benefits, as Defendant asserts that since in cannot be required to pay above the contracted maximum amount of benefits, there can be no recovery by Plaintiff in this case, and that judgment should be entered in favor of Defendant. Plaintiff conceded at the hearing that at this time, the benefits claimed to be due when this suit was filed cannot be recovered, as Plaintiff agrees that Defendant cannot be required to pay above its policy limits, and no bad faith has been claimed in this case. Thus, this Court need not rule on Plaintiff’s entitlement to the benefits originally claimed to be due.
5. However, Plaintiff claims that Defendant can and should be required to pay interest on the benefits that were sought, as well as attorney’s fees, if the interest is found to be due. Plaintiff argues that a fact-finder still must determine whether Plaintiff is entitled to the benefits in question, and if so, that interest would be due, which then would warrant an award of attorney’s fees.
6. Despite the appeal of Plaintiff’s argument, which would allow counsel to obtain compensation for taking and litigating a case that may have had merit at the outset, it is contrary to the law. Though not specifically addressed by any District Courts of Appeal, the case of Dr. Robert Simon, M.D., P.A. a/a/o Eric Hon v. Progressive Express Insurance Company (904 So. 2d 449, Fla. 4th DCA 2005) requires this Court to rule in favor of Defendant. Specifically, the Court in that case said that under Plaintiff’s theory in that case (which was that the amount of benefits that were denied should have been reserved in case of a dispute), “all potential payments to a service provider that were denied, or subject to a reduction, would have to be held in reserve until the statute of limitations period expired or a suit was filed and concluded. . . This would delay and reduce the availability of funds for the payment of claims to other providers, and would be inconsistent with the PIP statute’s ‘prompt pay’ provisions.” Thus the Court clearly considered and accepted the notion that an insurance company would continue to receive claims from other providers after a lawsuit was filed, such as occurred in the case at bar, and implicitly approved of, if not required, the company’s payment of such later claims. To penalize Defendant for doing what it should — or must — do, would not be justified.
7. As to Plaintiff’s claim that interest can and should be paid even though no benefits can or would be paid, such is contrary to the clear language of the statute governing PIP benefits, which says that while interest is to be calculated from the date the insurer received notice of the amount of the covered loss, the interest actually is due “at the time payment of the overdue claim is made.” (Fla. Stat. Sec. 627.736(4)(c)). There clearly cannot be any obligation to pay interest if payment of the alleged overdue claim is not made.
8. Finally, as to Plaintiff’s claim for attorney’s fees, there cannot be any entitlement to same, since Plaintiff’s claim for benefits and interest must be denied. It is therefore,
ORDERED AND ADJUDGED that Defendant’s Motion for Final Summary Judgment is granted. Judgment is entered in favor of Defendant, and Plaintiff shall take nothing by this action, and Defendant shall go hence without day.
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