13 Fla. L. Weekly Supp. 612a
Insurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Subsequent claim for unpaid portion of bill — Exhaustion of benefits after insurer is on notice that medical provider is pursuing claim for underpaid bills will not shield insurer from liability for those bills — Further, insurer is precluded from arguing exhaustion defense where insurer failed to raise issue of exhaustion of benefits until more than one year after exhaustion had occurred, insurer raised issue in motion for summary judgment without amending affirmative defenses to allege exhaustion defense, and delay was prejudicial — No merit to claim that affirmative defense stating that insurer’s liability, if any, is governed by terms, conditions and limitations of policy pleads exhaustion of benefits because this defense was raised months before exhaustion occurred
JEFFREY S. BEITLER, MD, P.A. (HILDA STRALEY), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Dade County. Case No. 02-24929 SP 23 (02). March 13, 2006. Caryn Canner Schwartz, Judge. Counsel: Brian Rodier, Rodier & Rodier, P.A., Hallandale, for Plaintiff. David Bronstein, Wood-Bronstein, P.A., for Defendant.
ORDER DENYING DEPENDANT’S MOTIONFOR SUMMARY JUDGMENT REGARDING EXHAUSTION OF PIP BENEFITS
THIS CAUSE having been presented to the Court on defendant’s motion for summary judgment regarding exhaustion of PIP benefits, having held a hearing and heard arguments of counsel, having reviewed supplemental memorandums and case law submissions by both parties, and the Court having considered the motion, and being otherwise advised in the premises, it is hereupon
ORDERED and ADJUDGED, that the motion is DENIED. The court finds as follows:
1. The defendant filed a renewed motion for summary judgment dated October 4, 2005. The motion alleges that the PIP policy at issue in this cause of action exhausted its policy limits on March 25, 2003.
2. The plaintiff filed this cause of action on October 11, 2002. The complaint filed seeks damages against the defendant for underpaid PIP benefits, specifically, benefits that were unilaterally reduced by the defendant. At the time suit was filed and Progressive was on notice of the claim, PIP benefits were still available.
3. Prior to the time the defendant exhausted its PIP policy, the defendant was on notice that the plaintiff was making a claim for the underpaid PIP benefits which are the subject of this cause of action.
4. The defendant cites the case of Simon v. Progressive Express Insurance Company, 904 So.2d 449 (Fla. 4th DCA 2005), in support of its renewed motion. The court finds that Simon does not apply to this cause of action. In Simon, the medical provider was barred from recovering underpaid medical bills because he made a claim for those bills only after the benefits had already been exhausted. The insurance company was not on notice that Dr. Simon was pursuing a claim for those bills at issue prior to the time of exhaustion. The instant case is distinguishable.
5. Here, the plaintiff filed suit and placed the defendant on notice prior to the time of exhaustion. Therefore, at the time the defendant exhausted the policy benefits, it knew that the plaintiff was pursuing a claim for the underpaid bills at issue. Exhaustion of benefits after an insurance company is on notice of a claim for particular bills will not shield it from liability for those bills. The motion for summary judgment is therefore denied on that basis alone.
6. In addition to this court finding the Simon decision inapplicable to this cause of action, the motion is denied on additional grounds. The defendant failed to timely raise the affirmative defense of exhaustion of benefits prior to moving for summary judgment. Even if the Simon decision did apply, the court finds that the failure to timely raise the defense further precludes summary judgment on the issue of exhaustion.
7. As previously noted, the defendant exhausted benefits on March 25, 2003. At that time, it knew of or should have known of the potential defense. However, it was not until April 8, 2004, more than one year after the exhaustion of benefits had occurred, that the defendant raised the issue for the first time, and in doing so, raised it exclusively in a motion for summary judgment. The defendant failed to file a motion to amend its affirmative defenses prior to filing its first motion for summary judgment and failed to do so prior to filing its second motion for summary judgment.
8. This court, through Circuit Court Judge Thomas K. Peterson, denied the first motion for summary judgment on November 4, 2004.
9. The defendant contends that the pleading of an affirmative defense of exhaustion is not a prerequisite to obtaining a summary judgment on that issue. The defendant also argues in the alternative, that the eighth affirmative defense which the defendant pled in the original answer, filed on November 18, 2002, which stated that its liability, if any, is governed by the terms, conditions and limitations contained in its policy of insurance, is sufficient to move for summary judgment based upon exhaustion of benefits subsequent to the filing of the lawsuit. This court disagrees. It is significant to note that defendant’s eighth affirmative defense, which defendant contends pleads exhaustion, was raised months before the exhaustion even took place.
10. Additionally, this court today finds that even if there were no legal requirement to plead the affirmative defense, the defendant still waited more than one year from the time it knew of, or should have known of the defense, to raise the exhaustion issue in any form whatsoever. The court finds that the delay is prejudicial and precludes the defendant from arguing exhaustion of benefits as defense in this case.
