13 Fla. L. Weekly Supp. 343b
Insurance — Personal injury protection — Coverage — Medical expenses — Where insured was involved in two motor vehicle accidents occurring one month apart, and medical records and reports indicate that insured sustained no new injuries and received no additional treatment as result of second accident, insured is not entitled to PIP benefits with respect to second accident
MARILYN REESE, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2003-CC-016929, Division I. December 8, 2005. Pauline M. Drayton, Judge. Counsel: Kelly B. Hampton, The Gallagher Law Firm, Jacksonville, for Plaintiff. Christopher K. Leifer, James C. Rinaman, III & Associates, P.A., Jacksonville, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT RE: NO LOSS SUSTAINED
THIS CAUSE, having come before the court on Defendant’s Motion for Summary Judgment, and it appearing that good and sufficient grounds were shown for Granting the Motion, and otherwise being fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED that the Court makes the following findings:
1. On or about August 28, 1999, Plaintiff was involved in a motor vehicle accident.
2. At the time of the August accident, Plaintiff was already receiving treatment, from Timothy DeWitt, D.C., for injuries sustained in a motor vehicle accident that occurred on or about July 23, 1999.
3. The medical records, of Dr. DeWitt, properly before the Court, stated as follows:
A. Date of service August 30, 1999 (the first date of treatment subsequent to the August 28, 1999 accident); “The diagnosis of Ms. Reese should remain subacute traumatic cervicothoracic radiculitis, cervicalgia and muscle spasms that were sustained in the original motor vehicle accident of July 23, 1999.”(emphasis added). “The treatment plan will remain as before.” “The treatment itself will also remain as before.”
B. Dates of service September 17, 1999, October 29, 1999, November 29, 1999 and December 28, 1999; all state that Plaintiff’s symptoms were the result of “injuries sustained in the motor vehicle accident[/collision] of July 23, 1999.”
C. Report, dated June 16, 2000 (wherein Dr. DeWitt discussed all of Plaintiff’s treatment and both motor vehicle accidents); Plaintiff “has sustained permanent injuries in regards to the motor vehicle collision of July 23, 1999.” “The extent of [Plaintiff’s] injuries are consistent with . . . a 14% impairment of the whole person as related to injuries sustained in the July 23, 1999 motor vehicle collision.”
4. FLA. STAT. § 627.736(1) only requires an insurer to provide personal injury protection benefits for “loss sustained . . . as a result of bodily injury . . . arising out of the ownership, maintenance, or use of a motor vehicle . . . .”
5. The evidence properly before this Court showed that Plaintiff sustained no new injuries as a result of the August 28, 1999 motor vehicle accident and that she received no additional, or different, treatment as a result of the August 28, 1999 motor vehicle accident; therefore, Plaintiff has not sustained a loss as a result of bodily injury arising out of the ownership, maintenance, or use of a motor vehicle.
6. There remain no genuine issues as to any triable facts. There were no new injuries sustained by Plaintiff as result of the motor vehicle accident at issue and no additional treatment was rendered as result of the motor vehicle accident at issue; therefore, Plaintiff did not “sustain a loss,” as contemplated by FLA. STAT. §627.736(1), and Plaintiff is not entitled to personal injury protection benefits under her policy of insurance with Defendant with respect to the motor vehicle accident at issue in this lawsuit.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff, MARILYN REESE, take nothing by this action and Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, shall go hence without day and the Court retains jurisdiction for the purpose of determining any motion by Defendant to tax attorney’s fees and costs.
