13 Fla. L. Weekly Supp. 355a
Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — Where insurer elected not to pay PIP benefits for amounts billed and otherwise payable to medical provider, and there were sufficient benefits remaining under policy to pay full amount billed at time of billing, but insurer ignored provider’s priority claim and exhausted benefits in payments to providers having subordinate claims, insurer owes provider compensatory damages in amount equal to benefits that would have been paid if insurer had properly paid claim prior to exhaustion of benefits, as well as statutory interest and penalties, attorney’s fees and costs — Insurer’s failure to recall receipt of entire HCFA form is insufficient to rebut presumption that entire form was received where insurer acknowledges receiving portion of form
BARTON LAKE HEALTHCARE CENTERS, on behalf of Jose A. Martinez, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 9th Ninth Judicial Circuit in and for Orange County. Case No. CCO-01-9950. January 11, 2006. Jerry L. Brewer, Judge. Counsel: Rutledge M. Bradford, Rutledge Bradford, Orlando. Matthew Haftel, Orlando.
Editor’s note: see 16 Fla. L. Weekly Supp. 1125a
ORDER GRANTING PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT
THIS MATTER having come before this Court on PLAINTIFF’S MOTION FOR FINAL SUMMARY JUDGMENT and this Court having heard arguments of counsel and being otherwise fully advised in the premises, the court finds the following:
FACTUAL BACKGROUND
1. This is a claim for PIP benefits arising out of a motor vehicle collision that occurred on or about 12/28/2000.
2. The Plaintiff in this matter is BARTON LAKE HEALTHCARE CENTERS, as assignee of Jose A. Martinez.
3. On June 8, 2001, the Plaintiff rendered treatment to Jose Martinez for CPT code 99204 and billed the Defendant $225.00. The Defendant acknowledged receiving the HCFA form and one additional page of information, but claimed it did not receive the office notes for June 8, 2001 and therefore made no payment on this bill.
4. This lawsuit was filed on July 17, 2001.
5. Thereafter, on July 27, 2001, the Defendant exhausted benefits by making payments to other providers and the assignor, for wages.
6. The claims adjuster for the Defendant, Luisa Hernandez was deposed and confirmed that when the bill for the June 8, 2001 date of service was received by Progressive, there was more than enough PIP benefits remaining to have paid the bill in full.
7. Ms. Hernandez further confirmed that the Defendant did not set aside the sums at issue before paying subsequently received bills. When asked, “Do you know why?” she replied, “there was no particular reason. We just didn’t set it aside and other bills came in that were ready to be paid.” Deposition of Luisa Hernandez, p 16 lines 3-6.
8. The Plaintiff moves for final summary judgment asking the court to find as a matter of law, that the Defendant had an obligation to pay the bills in full in the order in which they were received; its failure to do so provides no protection from their obligation to the Plaintiff because of a subsequent exhaustion to others; that the Defendant’s acknowledgment of receipt of a portion of the information provided by the Plaintiff creates a rebuttable presumption of receipt of all the information and that as a matter of law, the carrier received all the information necessary to make payment in full to the Plaintiff.
LEGAL ANALYSIS
There have been a multitude of decisions on the issue of exhaustion of benefits in the realm of PIP claims addressing the exhaustion of benefits before suit is filed, after suit is filed; when benefits have been requested to be reserved; when they have not; when a provider has advised of their objection to a partial payment and when they have not. For reasons that are not clear, courts are all over the place on this issue. What is clear in this case is that benefits that should have been paid to the Plaintiff were not, to the Plaintiff’s detriment.
The purpose of the PIP law is to ensure “swift” payment of PIP benefits. Crooks v. Progressive Mutual Automobile Ins. Co., 659 So. 2d 1266, 1268 (Fla. 3rd DCA 1995). A provider of health services to a person injured in an accident should have a fair degree of predictability under Florida law: if they submit their bill with the requisite information, their bill will receive consideration and be processed for payment in the order in which it was received. When this does not occur, a provider has a cause of action against the carrier, regardless of whether or when benefits exhausted or under what circumstance.
When an insurer wrongfully denies or withholds payment, the insurer does so at its own risk and must suffer the consequences of its actions. § 627.736(4) and (8), Fla. Stat. set forth the statutory penalties of interest, attorney fees and costs for an insurer’s failure to properly pay PIP benefits. Here, because Progressive failed to follow the law regarding payment of claims, it is responsible for statutory interest and penalties for its improper conduct in paying claims out of order prior to exhaustion of benefits.
Progressive is further responsible for payment of compensatory damages in an amount equivalent to the benefits that would have been paid had Progressive properly paid the claim at issue prior to the exhaustion of benefits. Progressive is liable for compensatory damages by virtue of the assignment of benefits given to the Plaintiff by Progressive’s insured, and the compensatory damages arise from Progressive’s willful disregard of the priority status of the Plaintiff’s claim to payment of benefits. Alternatively, Progressive should or could reapportion benefits to the Plaintiff for the bills that would have been paid had Progressive properly paid the claim prior to the exhaustion of benefits, and seek recovery of benefits from the last-paid providers that would otherwise not have been paid due to benefits exhausting earlier had they been properly paid.
Defendant, Progressive, at its own risk, elected to deny PIP benefits for amounts billed and otherwise payable for the reasonable charges incurred by Jose Martinez for treatment rendered by the Plaintiff. At the time of the improper denial, there were sufficient benefits remaining under the Progressive policy to pay the full amount billed by Plaintiff. Progressive disregarded Plaintiff’s priority claim to payment under the assignment and instead paid benefits to others having claims subordinate to the Plaintiff. The balance of the benefits due to the Plaintiff are “overdue” by the plain language of § 627.736(4) and (8), Fla. Stat. In addition to the compensatory damages owed, once the bills are determined to be “overdue”, Progressive’s liability for interest, attorney fees and costs is established, and the fact that the coverage was exhausted is irrelevant.
A PIP insurer should not be entitled to pay PIP benefit claims in the order and amount that it deems appropriate (especially if improper or incorrect), and then hide behind the fact of payment of the full policy benefit. If this procedure were allowed, as advocated by Progressive in this case, “. . . it would permit and sanction allowing an insurer to apply the payments of medical bills in any manner it chose and, in some cases, to exhaust PIP benefits so as to deny payment to any medical providers who are not ‘favored.’ The courts cannot be unwitting facilitators of such a manipulation.” Pinnacle Medical, Inc. d/b/a ISO Data Diagnostics v. Progressive Insurance Company, 5 Fla. L. Weekly Supp. 663a (Fla. 17th Cir. Ct. 1998).
Finally, it is important to note in this case that the carrier failed to rebut the presumption that it received the information it needed to process this bill. In Allstate vs. Eckert, 472 So.2d 807 (Fla. 4th DCA, 1985), the Fourth District reasoned, “The rule is that, when something is mailed by a business, it is presumed that the ordinary course of business was followed in mailing it and that the mail was received by the addressee.” Citing Brown vs. Geffen Industries, 281 So.2d 897 (Fla. 1973). The court went on, “Additionally, where several papers are enclosed in one envelope, when one is received, there is a strong presumption that they all were. Failure to remember whether something mailed is received is usually considered insufficient to overcome the presumption of receipt. Accordingly, Eckert’s failure to recall receipt of the entire form is insufficient to rebut the presumption that it was received. Since no credible evidence sufficient to sustain a finding of the nonexistence of the presumed fact was introduced, the trier of fact was required to assume the existence thereof. Sec. 90.302 Fla. Stat. (1983).”
It is hereby, ORDERED AND ADJUDGED:
1. Plaintiff’s Motion for Final Summary Judgment is GRANTED. The Defendant has failed to rebut the presumption that it received the office notes with the billing submitted in this case. Additionally, the Defendant failed to abide by the English rule regarding priorities of payment and did so at its own risk.
2. The Plaintiff is entitled to full payment of the bill submitted (at the contracted amount under the policy) as well as interest at 11% from the date of submission in 2001 through payment.
3. The Court reserves jurisdiction for the assessment of attorneys fees and costs, as appropriate.
* * *
