14 Fla. L. Weekly Supp. 1013a
Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — No merit to argument on rehearing that court overlooked case law where court found cited cases distinguishable — Court did not hold that insured is entitled to benefits in excess of policy limits in absence of bad faith, but rather, that PIP benefits were overdue because insurer wrongfully denied and disregarded provider’s priority claim and exhausted benefits on subordinate claims — Appeals — Preservation of issues — No merit to contention that provider should have been prevented from raising argument in response to exhaustion of benefits defense because it did not file reply to defense where issue was raised in both parties’ motions for summary judgment and argued in trial court
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. JRA DIAGNOSTICS, INC., f/k/a R.O.M. DIAGNOSTICS OF ORANGE COUNTY, as assignee of Mary Taylor, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 05-60. L.C. Case No. SCO-03-005361. August 7, 2007. Counsel: Hinda Klein, Conroy, Simberg, Ganon, Krevans and Abel, P.A., Hollywood. Thomas Andrew Player, Weiss Legal Group, P.A., Maitland.
ORDER DENYING APPELLANT’SMOTION FOR REHEARING
[Original Opinion at 14 Fla. L. Weekly Supp. 438b]
THIS MATTER came before the Court for consideration of the Appellant’s “Motion for Rehearing,” filed on March 23, 2007. In addition, on June 11, 2007, the Appellant filed a Notice of Supplemental Authority and on June 26, 2007, the Appellee filed a “Motion to Strike Appellant’s Notice of Supplemental Authority.” The Court finds as follows:
The prime function of a motion for rehearing is to present to the court some point that it overlooked or misapprehended, which renders the decision erroneous. Hollywood, Inc. v. Clark, 15 So. 2d 175 (Fla. 1943); Fla. R. App. P. 9.330. Motions for rehearing that reargue the merits of the case are inappropriate. Seslow v. Seslow, 625 So. 2d 1248 (Fla. 4th DCA 1993).
Here, the Appellant first asserts that the Court may have overlooked the case law from the District Courts of Appeal and the Florida Supreme Court upon which Appellant relied. However, the Court did not overlook these cases. Rather, the Court found these cases distinguishable from the issues presented in this appeal. Specifically, Talat Enterprises, Inc. v. Aetna Casualty & Surety Co., 753 So. 2d 1278 (Fla. 2000), did not involve the PIP statutes or a PIP issue. The case of State Farm Mutual Auto. Ins. Co. v. Horkheimer, 814 So. 2d 1069 (Fla. 4th DCA 2001), involved a default judgment for uninsured motorist benefits which exceeded the insurance policy limits. The cases of Allstate Ins. Co. v. Sutton, 707 So. 2d 760 (Fla. 2d DCA 1998) and Government Employees Ins. v. Robinson, 581 So. 2d 230 (Fla. 3d DCA 1991), involved trial courts entering judgments based on jury verdicts in excess of insurance policy limits where there was yet to be a determination of bad faith.
In its final order, this Court did not hold that an insured is entitled to benefits in excess of the policy limits in absence of a finding of bad faith. Rather, this Court found that based on the facts and circumstances presented in this case, the PIP benefits were overdue pursuant to section 627.736, Florida Statutes.
The Appellant also contends that the Appellee should have been prevented from raising any argument in response to the Appellant’s exhaustion of benefits defense because the Appellee did not file a reply to this defense. However, both parties addressed this issue in their respective motions for summary judgment without objection by the Appellant. Thus, the exhaustion of benefits defense was presented to and argued in the trial court. Accordingly, the Appellee could properly respond to this argument in its Answer Brief to this Court.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED that the Appellant’s “Motion for Rehearing” is DENIED. The Appellee’s “Motion to Strike Appellant’s Notice of Supplemental Authority” is DENIED. (LAWRENCE KIRKWOOD, JOHN H. ADAMS, Sr., and RENEE A. ROCHE, JJ.)
