15 Fla. L. Weekly Supp. 159a
Insurance — Personal injury protection — Priority of payments — Exhaustion of policy limits — Where lost wage claim was made before insured gave assignment to medical provider, and assignment only assigned benefits for treatment, not for any lost wages, insurer was correct in paying lost wage claim that exhausted policy limits even after receipt of provider’s demand letter disputing reduced medical bills and notice of assignment
WELLINGTON CHIROPRACTIC CENTER & PHYSICAL THERAPY, INC., (as assignee for Chante Broadwater), Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502006SC013449XXXXMB RE. October 23, 2007. Peter M. Evans, Judge. Counsel: Glenn Siegel, Palm Beach. Dena Sisk Foman, Vernis & Bowling of Palm Beach, P.A., North Palm Beach.
ORDER GRANTING MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on September 5, 2007, for a hearing on Defendant’s Motion for Final Summary Judgment. The Court, having heard argument of counsel, and otherwise having been fully advised, hereby finds as follows:
1. Plaintiff filed this lawsuit on or about October 4, 2006 to recover personal injury protection (PIP) benefits relative to chiropractic treatment provided to the Defendant’s insured, Chante Broadwater as a result of a May 30, 2006 automobile accident. Plaintiff claimed entitlement to the benefits in question pursuant to an Assignment of Benefits.
2. The parties agree that prior to beginning treatment with the Plaintiff, the insured submitted a claim for lost wages under her personal injury protection benefits.
3. The Defendant alleges that while it was investigating the lost wage claim, bills were submitted by the Plaintiff pursuant to an Assignment of Benefits. Benefits were paid to the Plaintiff, but paid less than the amounts claimed, relying on Fla. Stat. Sec. 627.736(1)(a), which required Defendant to pay 80% of all reasonable expenses for medically necessary medical services. Defendant asserted that it fulfilled its statutory and contractual obligations in full, and that any additional amounts claimed by the Plaintiff were more than what it determined to be “reasonable”.
4. Progressive received Plaintiff’s August 30, 2006, statutory pre-suit demand letter disputing bill reductions, and Progressive responded thereto on September 13, 2006. The Defendant alleges it completed its investigation of Ms. Broadwater’s lost wage claim on September 14, 2006, and paid the remainder of the benefits for her lost wages.
5. Defendant’s Motion for Summary Judgment is predicated on this exhaustion of benefits. Defendant asserts that since it cannot be required to pay above the contracted maximum amount of benefits, there can be no recovery for the Plaintiff in this case, and that judgment should be entered in favor of the Defendant. Plaintiff contends that the Defendant was wrong in paying the lost wage claim because the insured signed an assignment of benefits form which it claims has priority over the wage claim. The Defendant argued that benefits were exhausted by payment of the policy limits and as such there were no more benefits left for further claims. The Defendant relied upon Simon v. Progressive Express Insurance Company, 904 So.2d 449 (Fla. 4th DCA 2005) in support of its position that no further benefits were due to the plaintiff upon the exhaustion of benefits.
6. The plaintiff relied on a Fifth District case to assert the position that an assignment trumps a reservation of benefits for lost wages. State Farm Fire and Casualty Company v. Ray, 556 So.2d 811 (5th DCA 1990). In the Ray case the facts were different in that the insurance carrier was directed to hold funds aside for a potential lost wage claim and the court found that an assignment of benefits would give greater benefit for the assignor than a reserve set aside for lost wages. However, the fact scenerio is quite different in this case. It is undisputed that the insured filed an actual claim for lost wages before she gave assignment to any provider of medical services. The Court agrees that the assignment of benefits to the Plaintiff only assigned benefits for medical treatment and not for any lost wage claim. The Defendant alleges that the only reason the claim was not paid is because documentation was previously requested with respect to the lost wage claim.
7. This Court finds that since the insured’s lost wage claim was made first, the Defendant was correct in paying the lost wages even after receiving Plaintiff’s notice of its dispute through its pre-suit demand letter, along with Plaintiff’s notice of its assignment of benefits.
ORDERED AND ADJUDGED that the Defendant’s Motion for Summary Judgment is hereby Granted. Judgment is entered in favor of the Defendant and the Plaintiff shall take nothing by this action and Defendant shall go hence without day. The Court reserves jurisdiction to determine attorneys fees and taxable costs.
