15 Fla. L. Weekly Supp. 907b
NOT FINAL VERSION OF OPINION
Subsequent changes at 16 Fla. L. Weekly Supp. 92a
Insurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — If amount of benefits claimed by medical provider/assignee was available at time of claim, provider is allowed to challenge reasonableness of reduction in payment regardless of whether benefits were subsequently exhausted and is entitled to damages if insurer did not pay claim in manner prescribed by statute — Insurer’s motion for summary judgment is denied
JACKSONVILLE SPINE & INJURY CENTER, P.L., As assignee of KATECIA GREEN, Plaintiff(s), v. PROGRESSIVE AMERICAN INSURANCE COMPANY, a Florida Insurance Company, Defendant(s). County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2007-SC-010634-XXXX, Division M. July 11, 2008. Kevin A. Blazs, Judge. Counsel: Joseph V. Camerlengo, Camerlengo & Brockwell, Jacksonville. James C. Rinaman, III, Jacksonville.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came on to be heard at the April 24, 2008 hearing on Defendant’s Motion for Summary Judgment, as served on December 4, 2007, and this Court, having taken evidence and heard argument of counsel and being otherwise fully advised of the premises therein, makes the following findings of fact and conclusions of law:
1. The Affidavits of Cheryl Shaw and Dr. Scott Meide, filed on behalf of the Defendant and Plaintiff respectively, establish that Katecia Green was involved in a motor vehicle accident on May 29, 2007 and received initial care from Dr. Meide on June 1, 2007. At that time, Ms. Green assigned her rights and benefits under her Progressive policy of insurance to Jacksonville Spine and Injury Center, PL. Dr. Meide continued to provide care to Ms. Green over several months and submitted bills for medical care to Progressive within the statutory time period. Contemporaneous with the submission of bills for medical care, a“Notice of Intent” wasserved on June 1, 2007 indicating that“if at any time you reduce, deny or otherwise refuse to timely pay our bills submitted, please reserve sufficient No-Fault and/or medical payments coverage (if applicable) to pay all disputed, reduced and/or denied amounts. We intend to pursue any and all amounts due. This includes filing litigation, if necessary. If benefits are exhausted and you failed to reserve sufficient funds to pay all disputed, reduced and/or denied bills, we will seek an award of benefits in excess of the stated coverage limits”. The Plaintiff submitted bills to the Defendant for services rendered to Ms. Green and payment was made for care rendered from June 1, 2007 through June 28, 2007 with all PIP benefits being exhausted under the policy on September 7, 2007. However, on August 29, 2007, the Defendant received Plaintiff’s demand letter for unpaid PIP benefits pursuant to F.S. 627.736(11) seeking the unpaid balance for services rendered from June 1 through June 28, 2007. The Defendant’s Motion for Summary Judgment contends that summary judgment should be granted because PIP benefits under the Progressive policy were exhausted on September 7, 2007, well before the Plaintiff’s October 11, 2007 Complaint was filed and that the Plaintiff is therefore without a legal remedy.
2. The only appellate case dealing with the issue of liability after the exhaustion of PIP benefits is Simon v. Progressive Express Ins. Co., 904 So.2d 449 (Fla. 4th DCA 2005). The foregoing case is factually distinguishable in that the Plaintiff accepted the reduced payment without notifying the insurer of an intent to submit an amended claim. In the case at issue, Progressive was placed on notice by the Plaintiff of its intent to bring a claim for any reduced PIP payment. Other cases finding the insurer potentially liable rely on the reasoning that the insurer has a contractual and statutory duty to process claims in a particular fashion; by paying the reasonable, related, and necessary amounts of each covered claim, in the sequential order of filing, until the policy benefits are exhausted. Celpha Clinic, Inc. v. Progressive Express Ins. Co., 11 Fla. L. Weekly Supp. 113a (Fla. 13th Cir. Ct. Dec. 18, 2003), Nu-Wave Diagnostics v. Fortune Ins. Co., 8 Fla. L. Weekly Supp. 229b (Fla. 17th Cir. Ct. Jan. 22, 2001), Barton Lake Health Care Centers v. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 355a (Fla. Orange County Ct. Jan. 11, 2006), Bartosek Chiropractic Center, PA v. Nationwide Gen. Ins., 10 Fla. L. Weekly Supp. 199a (Fla. Palm Beach County Ct. Jan 21, 2003), VTC Testing Center of Orlando N., Inc. v. Allstate Ins. Co., 8 Fla. L. Weekly Supp. 568a (Fla. Orange County Ct. June 26, 2201), Med+Plus Med. Clinics, Inc. v. Allstate Ins. Co., 8 Fla. L. Weekly Supp. 250a (Fla. Manatee County Ct. Jan 19, 2001), Tower Health Center v. Lydon Property Ins. Co., 7 Fla. L. Weekly Supp. 627b (Fla. Broward County Ct. June 5, 2000), and Pinnacle Medical, Inc. v. Allstate Ins. Co., 5 Fla. L. Weekly Supp. 663a (Fla. 17th Ct. Apr. 23, 1998). Per the foregoing cases, the insurer’s failure to pay a claim in a manner prescribed by statute amounts to a breech of contract, and the claimant is entitled to damages, regardless of whether the insurer has exhausted benefits by paying other legitimate claims. A denial of potential liability after exhaustion of benefits would permit insurers to pay whoever they choose, regardless of statutory and contractual duties, believing that they can always avoid liability by claiming exhaustion of benefits.
3. F.S. 627.736(4) provides that covered claims must be paid “as loss accrues. . .”. The payment of claims becomes overdue if not paid within thirty days from the claim notice while overdue payments bear simple interest, which must be paid when the overdue claim is paid, per F.S. 627.736(4)(b). Under the statute, the right of an assignee provider differ from the rights of an insured. If an insured has ten thousand dollars in coverage and submits the claims, it does not make any difference whether the insurer pays the claim in the order filed or whether the insurer rejects claims for improper reasons, as long as the insurer pays the entire ten thousand dollars in coverage. Once benefits have been exhausted, the insured is responsible for all payments in excess of the ten thousand dollar coverage amount. On the other hand, the assignee has a statutory and contractual right to be paid the entire amount of a covered claim filed at a time when the amount is still available under the policy. An unpaid or reduced claim becomes overdue within thirty days from filing, unless the insurer has“reasonable proof”that it is not responsible for the payment, per F S. 627.736(4)(b). The insurer’s liability under the statute is established at the end of thirty days. Therefore, if the claimed amount of benefits was available at the time of the claim, it should not matter that benefits were subsequently exhausted. Seminole Casualty Ins. Co. v. Schutpak, 9 Fla. L. Weekly Supp. 529a (Fla. l7th Cir. Ct.) Wyatt v. MGA Ins. Co., Inc., 11 Fla. L. Weekly Supp. 44a (Fla. Duval County Ct. August 12, 2003). The assignee is allowed to challenge the reasonableness of a reduction of payment in an action for breech of contract and an insurer may not avoid its duties under the contract by pleading an exhaustion of benefits. To do otherwise would render provisions regarding payment procedures meaningless. Barton Lake Health Care, 13 Fla. L. Weekly Supp. 355a, Bartosek Chiropractic, 10 Fla. L Weekly Supp. 199a, Nu-Wave Diagnostic, 8 Fla. L. Weekly Supp. 229b. The assignee in such cases challenges the way in which the insurer performed its contractual duties and those obligations are governed by F.S. 627.736. If the insurer did not perform its contractual duties as required, the assignee is entitled to damages. Med+Plus, 8 Fla. L. Weekly Supp. 250a, VTC Testing, 8 Fla. L. Weekly Supp. 568a.
4. While this Court does not find any inherent statutory obligation for the insured to escrow claimed amounts, this Court does find that an insurer can be liable even though policy benefits have been exhausted, given the differing rights available to an assignee as opposed to an insured. There being a potential remedy available to the Plaintiff and there being a disputed issue of material fact as to the benefits paid to the Plaintiff by the Defendant and the additional amounts thereafter claimed by the Plaintiff against the Defendant, before the exhaustion of PIP benefits, this Court concludes that there is a material issue of disputed fact and it is, therefore,
ORDERED AND ADJUDGED:
1. The Defendant’s Motion for Summary Judgment is hereby respectfully DENIED.
