13 Fla. L. Weekly Supp. 744a
Insurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Where insurer’s overpayment of insured’s lost wages claim resulted in premature exhaustion of benefits, and medical provider’s claim was submitted prior to lost wages claim and exhaustion of benefits, insurer is liable to provider for amount of overpayment so long as provider is able to establish that benefits claimed were reasonable, related and necessary
MEDICAL CONSULTANTS OF SOUTH FLORIDA, (Beryl Blake, Patient), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 02-18280 COCE (50). March 31, 2006. Peter B. Skolnik, Judge. Counsel: Andrew J. Weinstein, Weinstein and Associates, P.A., Coral Springs, for Plaintiff. Matt Hellman, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE having come before the undersigned on February 3, 2006, upon the Plaintiff’s Motion for Summary Judgment, and the Court having heard argument of counsel and having been otherwise fully advised in the premises, it is hereupon:
ORDERED AND ADJUDGED as follows:
1. The above styled cause of action arises out of a claim for unpaid personal injury protection benefits filed by the Plaintiff.
2. The Defendant filed its Answer and Affirmative Defenses in this matter on September 23, 2002. Defendant stated in its Affirmative Defenses that, “Personal injury protection benefits under the subject insurance policy have been exhausted.”
3. On or about September 26, 2005, the Plaintiff filed its Motion for Summary Judgment on the issue of whether the Defendant properly exhausted benefits. This Court has considered the case law submitted by both parties in making its ruling. This Court has also considered all of the deposition transcripts filed by both parties in support of or in opposition to this Motion.
4. Contrary to the Defendant’s claim, this Court specifically finds that the facts of this case are distinguishable from those in Simon v. Progressive, 904 So.2d 449 (Fla. 4th DCA 2005).
5. A motion for summary judgment should be granted only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).
6. There is no genuine issue as to any material fact with respect to the matters raised by the Plaintiff in its Motion for Summary Judgment, and accordingly, Plaintiff is entitled to judgment in its favor as a matter of law.
7. This Court finds that:
a. The Defendant overpaid the Insured’s lost wage claim in a manner contrary to representations made by the Insured and the wage and salary verification received from the employer.
b. The Defendant failed to properly calculate the insured’s wage loss.
c. Defendant’s failure to properly investigate this claim resulted in the overpayment of Beryl Blake’s lost wage claim, and subsequently resulted in the premature exhaustion of benefits.
d. Plaintiff’s claim was submitted prior to the payment of Beryl Blake’s lost wage claim and the subsequent exhaustion of benefits.
e. The Defendant was aware that the Plaintiff held an assignment of benefits at the time it paid the wage loss claim.
8. As a result of the Defendant’s failure to diligently make a determination of the real benefits to be paid out, Defendant overpaid Beryl Blake for lost wages. Defendant is therefore liable to the Plaintiff for the amount of overpayment, see Pinnacle Medical Inc. v. Allstate Insurance Company, 5 Fla. L. Weekly Supp. 663a (Fla. 17th Jud. Cir. 1998), and no genuine issue of material fact exists as to this issue.
9. The Plaintiff’s claims are also supported by State Farm Fire and Casualty Company v. Ray, 556 So.2d 811 (Fla. 5th DCA 1990).
10. The Defendant has not produced any evidence to substantiate its claims that the patient Beryl Blake claimed $10,736.98 in lost wages from February 22, 2002 to March 31, 20021.
11. The Defendant paid sixty percent of $10,736.98 (amounting to $6442.19) to Beryl Blake on April 8, 2002, four days after receiving the Plaintiff’s covered claim for date of service February 22, 2002.
12. Defendant’s failure to properly calculate Ms. Blake’s correct lost wage amount is, in part, evidenced through Ms. Blake’s employer’s verification of employment form, which was provided to the Defendant on March 28, 2002.
13. Said employer verification form states that Ms. Blake receives $24.56 an hour. Additionally, Ms. Blake herself stated in her Application for Florida No-Fault Benefits that she earns $991.91 a week.
14. The evidence shows unequivocally that Ms. Blake was overpaid for her lost wages.
15. In addition, the deposition of Rocio Cedeno was taken on January 24, 2005. Ms. Cedeno is a human resources assistant with Boca Raton Community Hospital and was designated as the person with the most knowledge of Beryl Blake’s employment.
16. Ms. Cedeno stated, after viewing Beryl Blake’s time sheets, that PROGRESSIVE had made a mistake in paying Beryl Blake for days that she had actually worked. Additionally, when questioned about the sums paid by Progressive to Beryl Blake for wage loss, Ms. Cedeno stated that Progressive miscalculated the sums owed to Beryl Blake resulting in a substantial overpayment.
17. The deposition of Scott Colbert was taken on June 4, 2005. Scott Colbert is the litigation adjuster for the Defendant Progressive Express Insurance Company. Mr. Colbert does not have personal knowledge of the pre-suit handling of this claim.
18. Ms. Essie Wright, Payroll Assistant at Boca Raton Community Hospital, established in her deposition of July 7, 2005, that Beryl Blake was absent from work from February 25, 2002 until March 22, 2002, missing 21 days of work as a result of the accident on February 20, 2002, including 3 weekends.
19. Because no genuine issue of material fact exists with regard to the fact that Defendant improperly paid Beryl Blake’s lost wage claim, resulting in a premature exhaustion of benefits, and because no genuine issue of material fact exists with regard to the fact that but for Defendant’s improper claims handling, benefits would not have been exhausted prematurely, resulting in non-payment to the Plaintiff, the Plaintiff is entitled to summary judgment in its favor.
20. Based upon the un-refuted evidence presented by the Plaintiff, this Court finds that the insureds actual wage loss was $5,851.08. Pursuant to F.S. §627.736, Defendant is responsible for 60% of that amount or $3,510.65. Defendant paid the insured $6,442.19, in wage loss resulting in an overpayment of $2,931.54. Accordingly, Plaintiff shall recover the full amount of all overpayments made to the insured, so long as it is able to establish that the benefits claimed were reasonable, related and necessary.
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1At the conclusion of the hearing on February 3, 2006, this Court, in an abundance of caution, permitted the Defendant to obtain some form of sworn proof (either deposition transcript or affidavit) that the wage loss claim was calculated correctly. The Defendant was given 30 days to obtain said proof but did not do so.
