13 Fla. L. Weekly Supp. 1149a
Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — Subsequent claim for unpaid portions of bill — No error in finding that medical provider was required to provide notice of intent to contest partial payments and that provider’s notice was not received by insurer until complaint was served, after benefits were exhausted — No error in granting insurer’s motion for summary judgment — Appeals — Argument that provider may be entitled to attorney’s fees and interest if benefits should have been paid was not raised below and, accordingly, cannot be considered on appeal
FIRST CARE CHIROPRACTIC CENTER, INC., Appellant, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA04-35. L.C. Case No. 03SC-2879. August 14, 2006. Appeal from the County Court, Orange County, Jeffrey Arnold, Judge. Counsel: Juan C. Gautier, for Appellant. Phil S. Yurecka, Reynolds & Stowell, P.A., St. Petersburg, for Appellee.
[County court order published at 11 Fla. L. Weekly Supp. 650c.]
(BEFORE T. SMITH, RODRIGUEZ, and HAUSER, JJ.)
ORDER AFFIRMING TRIAL COURT
(PER CURIAM.) Appellant, First Care Chiropractic Center, Inc. (“First Care”), seeks review of the trial court’s Order on Defendant’s Motion for Summary Judgment. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(c). The Court dispenses with oral argument. See Fla. R. App. P. 9.320.
Jean Joseph was insured by Appellee, Progressive Express Insurance Company (“Progressive”). On August 8, 2002, Joseph was injured in an automobile accident. First Care began providing medical care to Joseph on November 15, 2002. First Care submitted its bills to Progressive for payment and received either full or partial payment for each bill submitted through December 31, 2002.
On March 21, 2003, First Care filed a Complaint against Progressive claiming that Progressive either failed to pay or adjusted amounts due for bills submitted from November 15, 2002 to December 31, 2002 totaling $90.40. Service of process was received by the Insurance Commissioner on March 31, 2003. It was mailed to CT Corporation on April 4, 2003, and received by Progressive’s litigation department on April 10, 2003.
Progressive filed an Answer and Affirmative Defenses arguing that the expenses submitted were not reasonable, that Progressive had not received reasonable proof of such losses, and that First Care’s recovery was limited by section 627.736, Florida Statutes. On November 10, 2003, Progressive filed Defendant’s Motion for Summary Disposition. Progressive argued that it had made either full or partial payment on all of First Care’s bills and that each payment was submitted with an explanation of benefits detailing any deductions. Progressive also argued that benefits were exhausted on April 9, 2003 and that Progressive did not receive service of process of First Care’s Complaint until April 10, 2003. Finally, Progressive noted that its final payment, prior to exhaustion of benefits, was made to First Care in the amount of $674.61 for services rendered in March 2003.
On April 28, 2004, First Care filed Plaintiff’s Motion for Summary Judgment an Memorandum in Opposition to Defendant’s Motion for Summary Judgment. First Care argued that an insurer that reduces a bill then exhausts a policy of insurance does so at its own risk and that Progressive should have set aside the amounts which it deducted from First Care’s bills. A hearing was held on the parties competing Motions for Summary Judgment.
The trial court issued an Order on May 12, 2004 and made the following findings of fact: benefits were exhausted on April 9, 2003 with a last payment of $674.61 made to First Care; Progressive was served on April 10, 2003; First Care received payments from Progressive and did not dispute the amounts prior to exhaustion of benefits; based upon evidence and deposition testimony, First Care did not notify Progressive of a challenge to payments made prior to exhaustion; Progressive did not waive the exhaustion of benefits defense. The trial court concluded that First Care had a duty to provide notice of a dispute prior to exhaustion of benefits and failed to do so. The trial court also found that there was no net effect upon the total amount of PIP benefits paid to First Care because the final benefits paid out to First Care far exceeded the benefits in controversy.
A Final Judgment was issued on June 1, 2004. First Care filed a Notice of Appeal on July 2, 2004. An Order to Show Cause Why Sanctions Should Not Be Imposed was issued on October 13, 2004. An Initial Brief was filed on October 27, 2004. An Answer Brief was filed on November 16, 2004. Progressive filed a Motion to Dismiss/Motion to Strike Appellant’s Initial Brief on November 17, 2004. An Order Denying Appellee’s Motion to Dismiss/Motion to Strike Appellant’s Initial Brief was filed on January 7, 2005. An Order Directing the Parties to Supplement the Record on Appeal was issued on April 12, 2006.The supplemental record was filed on May 5, 2006.
STANDARD OF REVIEW
A final summary judgment is subject to de novo review. Volusia County v. Aberdeen at Ormond Beach, LP, 760 So. 2d 126 (Fla. 2000). In order to determine the propriety of a summary judgment, this Court must determine whether there is any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Krol v. City of Orlando, 778 So. 2d 490, 491 (Fla. 5th DCA 2001); Fla. R. Civ. P. 1.510(c). In reviewing a trial court’s order granting a motion for summary judgment, this Court must view the evidence in a light most favorable to the appellant and must draw all competing inferences in favor of the appellant. See Hoch v. Rissman, Weisberg, Barrett, 742 So. 2d 451, 456 (Fla. 5th DCA 1999).
DISCUSSION
On appeal, First Care argues that it was not required to notify Progressive it disputed payments made, or otherwise request that funds in dispute be placed in escrow. First Care argues that the trial court erred in finding it had a responsibility to provide notice. First Care also argues that Progressive is liable for services that were properly billed and not paid, prior to exhaustion of benefits. First Care argues that benefits were available when the Complaint was filed and when it was served via certified mail.
Progressive argues that First Care has failed to demonstrate reversible error and that the trial court correctly decided this case in its favor based upon facts unique to this case.
The undisputed facts in this case establish that First Care submitted bills for service dates from November 15, 2002 to December 31, 2002 and received full or partial payment for those bills within thirty days of receipt. Progressive used the Mitchell software system to determine the usual and customary charges for CPT codes billed by First Care and took reductions from its bills accordingly. Progressive submitted these partial payments with an Explanation of Benefits. First Care accepted payment on the submitted bills.
At no time prior to filing suit did First Care notify Progressive that it contested the reductions taken. First Care did not resubmit the unpaid portions of the bills nor did it resubmit a charge that was denied in full. From the time of the last contested bill until the exhaustion of benefits, First Care billed Progressive $6,005.00 for nine additional dates of service. Progressive paid First Care $4,634.61 on those claims including the last payment made on April 9, 2003 to First Care in the amount of $674.41 that exhausted benefits under the policy. The bill for the last claim made was received by Progressive on March 12, 2003.
First Care filed suit on March 21, 2003. The Complaint was received by the Florida Insurance Commissioner on March 31, 2003. The Florida Insurance Commissioner served the Complaint on Progressive through CT Corporation Systems, via certified mail, on April 4, 2003. Progressive did not receive the Complaint until April 10, 2003, the day after exhaustion of benefits under the policy.
No payments were made to anyone other than First Care after suit was filed but before Progressive received notice. Payments to First Care after suit was filed, but before benefits were exhausted, totaled $1,274.61.
At the hearing on Progressive’s Motion for Summary Disposition, the question before the trial court was whether First Care could proceed with this case where the Complaint was received by Progressive after exhaustion of benefits. The underlying issue, as framed by the parties, was which party bears the burden when an insurer makes a partial payment on a properly submitted bill. The parties, both in the trial court and on appeal, relied upon various trial level and circuit appellate opinions on this issue. At the time, there were no appellate court cases that addressed this specific issue.
An insurer is required to pay bills in the order in which it receives them. State Farm v. Ray, 556 So. 2d 811 (Fla. 5th DCA 1990). Section 627.736(4)(b), Florida Statutes, provides that when an insurer makes a partial payment, it shall provide “the name and address of the person to whom the claimant should respond and a claim number to be referenced in future correspondence.”
On May 4, 2005, the Fourth District Court of Appeal issued a decision in Simon v. Progressive Express Insurance Company, 904 So. 2d 449 (Fla. 4th DCA 2005). In that case, Simon, a provider, accepted a reduced payment from Progressive for services rendered to a policy holder who had been in an automobile accident. Id. At a later date, Simon resubmitted the claims. By that time, the remaining funds had already been committed to another provider because Simon failed to advise Progressive that he intended to resubmit the bills. Simon filed suit, claiming that Progressive was under the obligation to hold a sum in reserve indefinitely to cover partially denied claims. Id.
The District Court of Appeal concluded that Simon did not have a priority claim against the remaining undisbursed funds because he accepted partial payment and failed to notify the insurance company that an amended claim was forthcoming. Id. at 450. The District Court of Appeal declined to “create a requirement that an insurance company set aside a ‘reserve’ fund for claims that are reduced or denied.” Id.
Specifically, the appellate court held that:
If we were to accept Simon’s theory that a “reserve” or “hold” provision must be automatically applied to any available funds at the time a claim is submitted, it would result in unreasonable exposure of the insurance company and would be to the detriment of the insured and other providers with properly submitted claims. Under such a theory, all potential payments to a service provider that were denied, or were 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 availability of funds for the payment of claims to other providers and would be inconsistent with the PIP statute’s “prompt pay” provisions. See §§ 627.613 and 627.662(7), Fla. Stat. It is the obligation of insurance companies to attempt to settle as many claims as possible. Farinas v. Florida Farm Bureau General Insurance Co., 850 So. 2d 555, 560 (Fla. 4th DCA 2003).
Id.
There is no argument here that Progressive paid benefits out of order, only that Progressive should have escrowed any amounts that were reduced from First Care’s bills. Progressive provided an explanation of benefits with its reduced payments and First Care failed to notify Progressive that it contested those payments. Instead, First Care accepted those payments and continued to submit claims up to the time it filed suit. The Court finds that the trial court did not err when it found that First Care was required to provide notice of its intent to contest partial payments and that its notice was received by Progressive after benefits were exhausted.
Entitlement to Interest and Attorney’s Fees
On appeal, First Care argues that even though it may not be entitled to benefits, it may be entitled to interest and attorney’s fees if the benefits should have been paid. Progressive correctly notes that this is not an argument First Care made before the trial court. The transcript of the hearing, as well as First Care’s own Motion for Summary Judgment, makes no mention of this argument.
“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985). “It is the function of the appellate court to review errors allegedly committed by the trial court, not to entertain for the first time on appeal issues which the complaining party could have and should have, but did not, present to the trial court.” Hernandez v. Kissimmee Police Department, 901 So. 2d 420 (Fla. 5th DCA 2005), citing Saka v. Saka, 831 So. 2d 709 (Fla. 3d DCA 2002); Fla. Emergency Physicians-Kang & Assocs., M.D., P.A. v. Parker, 800 So. 2d 631 (Fla. 5th DCA 2001). This argument was not raised below, so it cannot be considered on appeal.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the trial court’s Order on Defendant’s Motion for Summary Judgment is AFFIRMED.
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