14 Fla. L. Weekly Supp. 881a
Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — Insurer’s motion for summary judgment based on exhaustion of benefits is denied where there remains material issue of fact as to whether insurer’s denial of benefits was wrongful — If charges are found to be reasonable, necessary and related, insurer will be liable for statutory interest and attorney’s fees
LEESBURG CHIROPRACTIC, INC., as assignee of Kevin Walters, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, a corporation authorized and doing business in the State of Florida, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-002922. October 23, 2006. J. R. Sloop, Judge. Counsel: Lee M. Jacobson, Law Offices of Michael B. Brehne, P.A., Maitland, for Plaintiff. George Milev, Adams & Diaco, P.A., Orlando, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came on for hearing October 16, 2006 on Defendant’s Motion for Summary Judgment, the Court having heard argument of counsel and being otherwise fully advised in the premises, ORDERS AND ADJUDGES as follows:
1. Defendant moves this Court to enter Final Summary Judgment based upon the theory that benefits have exhausted and “Plaintiff’s interest is extinguished when the interests of the insured are extinguished.”
2. The Circuit Court of the 18th Judicial Circuit, of which this Court’s rulings are bound by, has stated, “whether or not [the insurer’s] denial of benefits was wrongful was a material issue of fact.” Wiggins v. State Farm Mut. Auto. Ins. Co., 18th Judicial Circuit (Case No.: 04-01-AP); certiorari denied February 24, 2006, 5th DCA [31 Fla. L. Weekly D626].
3. Additionally, the Wiggins court stated, “Although Wiggins is not entitled to recover any more benefits, if the chiropractic charges are found to be reasonable, necessary and related to the motor vehicle accident then Appellee will be liable for the statutory interest on the unpaid sums and attorney’s fees.”
4. Defendant seeks to distinguish Wiggins from the case at bar in that in this case, the benefits exhausted prior to the filing of the lawsuit.
5. When the benefits exhausted is a distinction without a difference.
6. In fact, this Court has gone at much length to provide the legal reasoning for this conclusion to this Defendant before in its published opinion at 13 Fla. L. Weekly Supp. 398a, entitled Orlando Pain and Medical Rehabilitation Center, Inc. a/a/o Anthony Oddo v. Progressive American Ins. Co., Case No. 05-SC-0016.
7. Therefore, Defendant’s Motion for Summary Judgment is hereby DENIED.
