13 Fla. L. Weekly Supp. 393a

Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — Subsequent claim for unpaid portion of bills — Where medical provider never put insurer on notice that it was contesting partial payment of bill until after benefits were exhausted, summary judgment is granted in favor of insurer

SPACE COAST CHIROPRACTIC HEALTH SERVICES & DR. BRADLEY CLOW CHIROPRACTIC, as assignee of Ruthlyn Gomes, Plaintiff, vs. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Brevard County. Case No. 05-2005-SC-23756. January 11, 2006. George B. Turner, Judge. Counsel: R. Scott Simmons, Law Offices of Douglas E. Polk, Jr., Lake Mary. Gary Smith.

ORDER ON DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AND MEMORANDUM OF LAW

THIS CAUSE having come before this Honorable Court on Defendant’s Motion for Summary Judgment and Memorandum of Law, heard on December 13, 2005, and the Court having reviewed the pleadings and being otherwise fully advised in the premises, the Court finds that:

1. At all times material hereto, Nationwide had issued a policy of insurance which provided personal injury protection (“PIP”) benefits in the amount of $10,000 to Ruthlyn Gomes in accordance with the Florida No-Fault Law, Section 627.736, Florida Statutes. Such policy was in full force and effect on the February 3, 2005 date of loss.

2. On February 3, 2005, Mrs. Gomes was involved in a motor vehicle accident in which she claims to have been injured.

3. As a result of Ruthlyn Gomes’s injuries from the February 3, 2005 motor vehicle accident, various medical providers treated the insured and submitted their bills for payment to Nationwide under her personal injury protection coverage.

4. Ruthlyn Gomes assigned her benefits under her insurance policy with Nationwide to the Plaintiff on February 15, 2005.

5. On March 9 and 14, 2005, Mrs. Gomes treated with the Plaintiff and a $248.35 bill for CPT Codes 98943, 99070, 99070, 99070, 97124, 97014, 98942, and 98943 was submitted to Nationwide for consideration of payment.

6. Nationwide audited the subject bill and reduced payment based on note 12 which specifies that CPT Code 99070 is a “non-specific code” and that a description of this procedure must accompany the bill for proper consideration of payment and for verification of proper coding. Nationwide reduced Plaintiff’s $248.35 billing by only paying $151.20.

7. Section 627.736(1)(a), Florida Statutes provides that insurers are only responsible for 80% of all reasonable expenses for necessary medical services.

8. It is undisputed that when Plaintiff’s bill for the March 9 and 14, 2005 dates of service was submitted to Nationwide for payment, there was a sufficient amount of PIP benefits remaining to cover the entire charge.

9. Nationwide continued to pay medical bills received from various medical providers who treated Ruthlyn Gomes.

10. Ruthlyn Gomes’s benefits exhausted on May 4, 2005.

11. Nationwide fulfilled its contractual obligation to Mrs. Gomes for claims arising out of the February 3, 2005 motor vehicle accident.

12. It is undisputed that Plaintiff never put Nationwide, either verbally or in writing, on notice that it was contesting the partial payment of its bill until at least May 9, 2005, when it filed its demand letter to recover: (1) the remaining balance plus interest, penalty and postage; and (2) attorney fees and costs from Nationwide.

13. The PIP benefits available to an insured are derived from a contractual relationship between the insured and the insurer. The contract provides a finite amount of coverage similar to any other automobile coverage for bodily injury, un/underinsured motorist, collision, etc. When such contract is fully performed, it has been fulfilled. An assignee, who stands in the shoes of an insured, can hold no greater rights than the insured. Therefore, no party can expand his or her contractual rights unilaterally, whether insured or assignee. An insurer should not have to pay more than it was contractually obligated to pay just because the insured kept treating and assigning benefits to providers who kept accepting the assignments.

14. The Court is in agreement with the recent 4th DCA opinion of Simon v. Progressive, 904 So.2d 449 (Fla. 4th DCA 2005); see also the Circuit Court appellate decisions of MTM Diagnostics, Inc. v. State Farm Mutual Automobile Insurance Company, 9 Fla. L. Weekly Supp. 581 (Fla. 13th Judicial Circuit 2000), Centre for Alternative Medicine, Inc., etc., v. Allstate Insurance Company, Appeal No.: 01-83-AP (Fla. 18th Judicial Circuit 2003), and Neuro-Imaging Associates, P.A. v. Nationwide Insurance Company of Florida, 10 Fla. L. Weekly Supp. 738a (Fla. 15th Judicial Circuit 2002); see also the county court decisions of Vicki-Ann Bruneau v. Nationwide Property and Casualty Insurance Company, 11 Fla. L. Weekly Supp. 585a (Brevard County, 2004), John Ortolani, M.D. v. Progressive Bayside Insurance Company, 9 Fla. L. Weekly Supp. 706a (Volusia County, 2002), and Advanced Pain Clinic, P.A. v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 237a (Orange County, 2004).

15. The Court has considered the foregoing, and, IT IS ORDERED AND ADJUDGED that:

16. Nationwide’s Motion for Final Summary Judgment and Memorandum of Law is hereby GRANTED.

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