13 Fla. L. Weekly Supp. 183a
Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — Where medical provider did not dispute reduced amounts paid prior to benefits being exhausted, provider is not entitled to any additional benefits, including Medpay benefits
MITCHELL R. POLLAK, M.D., P.A. (Bryan Goldstone), A Florida Corporation, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-019275 COCE (54). October 17, 2005, nunc pro tunc August 31, 2005. Lisa G. Trachman, Judge. Counsel: Andrew Weinstein, for Plaintiff. Matt Hellman, Matt Hellman, P.A., Plantation, for Defendant.
FINAL SUMMARY JUDGMENT FOR DEFENDANT PROGRESSIVE EXPRESS INSURANCE COMPANY
THIS CAUSE having come before the Court for hearing on August 31, 2005, on Defendant Progressive Express Insurance Company’s Motion for Final Summary Judgment, and the Court having reviewed the file, the deposition of record, including Defendant’s motion, heard arguments of counsel, and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED:
Nature of the Case
1. The Plaintiff, Mitchell R. Pollak, M.D., P.A., (“Pollak”), brought this action seeking recovery of personal injury protection (“PIP”) benefits under section 627.736, Florida Statutes. By it’s complaint, Pollak seeks recovery for $305.93 for medical services given to Bryan Goldstone (Insured), the insured under an automobile policy issued by Defendant, Progressive Express Insurance Company (“Progressive”).
2. Progressive moved for summary judgment, asserting that Pollak was not entitled to payment of any PIP (or medical payment) benefits because the undisputed evidence of record establishes that all of Insured’s contractual PIP benefits have been exhausted.
Findings of Fact
3. The facts material to Progressive’s motion for summary judgment are undisputed and established by the pleadings and depositions of record. The material facts are set forth below.
4. The Insured had a contractual amount of $10,000 in PIP benefits and $2,000 in Med Pay with Progressive.
5. On or about June 27, 2001, the Insured was involved in a motor vehicle accident.
6. The Plaintiff billed for five dates of service: July 6, 2001; July 23, 2001; August 13, 2001; September 13, 2001; and October 1, 2001. The total amount billed for said dates of service was $2405. Progressive timely paid a portion of the each amount billed for each said date of service, leaving the amount at issue to be $305.93.
7. Progressive issued payment with an explanation of benefits for each date of service which informed the Plaintiff that if there was any dispute with the amount being paid to inform Progressive.
8. The Insured’s PIP benefits and Med Pay benefits were exhausted on December 4, 2001 by issuing payment in the amount of $5404.74 in PIP benefits and $851.19 in Med Pay to another medical provider, Westside Regional.
9. Pollak did not dispute the amount being paid prior to benefits being exhausted on December 4, 2001.Conclusions of Law — Exhaustion of Benefits
10. The Court hereby adopts the foregoing findings of fact to the extent they encompass conclusions of law or mixed findings of fact and conclusions of law.
11. The Court concludes that the Insured’s contractual benefits were exhausted on December 4, 2001; the Court further concludes that the Pollak did not dispute the amount paid for medical services rendered to Bryan Goldstone prior to said exhaustion of the Insured’s contractual benefits.
12. Pursuant to Simon v. Progressive, 904 So. 2d 449 (Fla. 4th DCA 2005) this Court concludes that Pollak is not entitled to any additional PIP benefits, including Med Pay benefits, as the Insured’s contractual benefits have been exhausted.
13. Based upon the foregoing analysis, the Court concludes that Progressive is entitled to final summary judgment in this case. Specifically, the information and evidence before this Court show that there is no genuine issue as to any material fact and that Progressive is entitled to a judgment as a matter of law.
Final Judgment
IT IS HEREBY ADJUDGED that Plaintiff, Mitchell R. Pollak, M.D., P.A., (a/a/o of Bryan Goldstone), 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 fees and costs.
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