16 Fla. L. Weekly Supp. 391a
Online Reference: FLWSUPP 165PITAL
Insurance — Personal injury protection — Insolvent insurers — Florida Insurance Guaranty Association Act — No error in granting summary judgment in favor of medical provider that submitted bill to insurer that was in rehabilitation and later became insolvent where provider complied with requirements of PIP law, and bill appears be covered claim under FIGA Act — Other bills that FIGA covered and on which it asserts it exhausted policy limits were gratuitous and should not be counted against policy limit — FIGA’s immunity does not extend to breach of contract actions
FLORIDA INSURANCE GUARANTY, ASSOCIATION, INC., Appellant, v. MILLENNIUM DIAGNOSTIC IMAGING CENTER, INC., a/a/o Dayami Pitaluga, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 07-291 AP. L.C. Case No. 04-21383 SP 23. February 23, 2009. An Appeal from the County Court for Miami-Dade County, Eric W. Hendon, Judge. Counsel: Charles W. Rice, Buckner, Shifrin, Rice, and Etter, P.A., for Appellant. Marlene S. Reiss, Law Office of Marlene S. Reiss, P.A., and Richard Shuster, The Law Offices of Shuster and Saben, LLC., for Appellee.
(Before MUIR, SHAPIRO, and COHEN LANDO, JJ.)
(COHEN LANDO, Judge.) The Appellant, Florida Insurance Guaranty Association, Inc. (FIGA), appeals an order for final summary judgment in favor of Appellee Millennium Diagnostic Imaging Center, Inc. (MDIC), as assignee of Dayami Pitaluga (Pitaluga).
This case is based on the following undisputed facts: on or about April 5, 2002, Pitaluga was involved in a motor vehicle accident in which she sustained personal injuries. Pitaluga’s insurer was The Aries Insurance Company (“Aries”). The policy provided personal injury protection (“PIP”) coverage of $10,000.00 as mandated by the Florida Motor Vehicle No-Fault Law, section 627.736(1)(a), Florida Statutes. In 2002, there was a $2,000.00 PIP deductible authorized by section 627.739, Florida Statutes.
On May 10, 2002, the circuit court in Leon County, Florida ordered Aries into rehabilitation and appointed the Florida Department of Insurance (now Florida’s Department of Financial Services) as Aries’ receiver to conduct its business, take possession of its property and assets, and assume all powers of Aries’ directors, officers, and managers (their authority was suspended). Additionally, the circuit court enjoined all persons within its jurisdiction from taking any action to collect, assess, or recover a claim against Aries as authorized by sections 631.041(3) and (4), Florida Statutes.
Meanwhile, Pitaluga sought medical treatment for her injuries, including a diagnostic bilateral breast sonogram at MDIC, which was performed on August 5, 2002. Pitaluga assigned her PIP benefits to MDIC to pay for the breast sonogram. On August 21, 2002, MDIC submitted the total charges of $450.00 to Aries for payment. This bill claim was received at the Aries address on August 23, 2002. However, the bill claim was not paid by Aries nor by its receiver.
On November 14, 2002, the circuit court in Leon County adjudicated Aries to be insolvent. That adjudication triggered the Florida Insurance Guaranty Association Act (“Act”), section 631.50, Florida Statutes. Under the Act, the association FIGA became obligated to pay covered claims existing prior to the adjudication of insolvency, (section 631.51(1)(a)(1), Florida Statutes) subject to the Act’s provisions contained in various other sections.
In August of 2003, MDIC was advised by Crawford and Company (“C&C”), a third-party administrator of FIGA that all PIP benefits had been exhausted.
On November 15, 2004, MDIC filed a breach of contract action against FIGA for failure to pay $360.00, and also sought prejudgment interest and attorney’s fees.
In response to MDIC’s amended complaint, FIGA’s answer included the following two affirmative defenses: As and for its first affirmative defense, Defendant states that the plaintiff’s claims are barred, limited and/or reduced by the provision and limitations contained in the Florida Insurance Guaranty Association Act, 631.50 et seq., and the alleged policy of insurance. As for its second affirmative defense, Defendant states that the alleged PIP benefits available to the Plaintiff’s assignors have been paid in full and are now exhausted, and no further PIP benefits under the alleged policy of insurance are available.
MDIC moved for summary judgment on March 13, 2006. The hearing on the motions for summary judgment took place on April 5, 2007. The trial court granted MDIC’s motion for summary judgment.
The standard of review applicable to the grant of a summary judgment is de novo, and requires the appellate court to view the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). To analyze summary judgment properly, the appellate court must determine: (1) whether there is a genuine issue of material fact, and (2) whether the trial court applied the correct rule of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
Summary judgment is properly granted where the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c).
Upon review, this Court finds that there exist no issues of material fact that would preclude summary judgment in the matter below. The factual and material issue of whether MDIC submitted its bill claim to Aries or whether Aries received the subject bill claim is not in dispute. All that remains in dispute are issues of law to the extent that the parties are at odds as to whether MDIC’s claim is, by law, a covered claim or whether it should have been paid.
This Court finds that MDIC complied with the requirements in section 627.736, Florida Statutes, and that its bill appears to be a covered claim under chapter 631, Florida Statutes. This Court finds that the other bills which FIGA covered above the $10,000.00 policy limit were gratuitous and should not be counted against the Pitaluga’s policy limit. This Court additionally finds that FIGA’s immunity does not extend to breach of contract actions; therefore MDIC’s action is not barred.
FOR THE FOREGOING REASONS, the order granting summary judgment in favor of Appellee is AFFIRMED.
Appellee’s Motion for Attorney’s Fees pursuant to section 627.428(1), Florida Statutes is GRANTED and the cause remanded to the lower tribunal for a determination of reasonable attorney’s fees in the event Appellee ultimately prevails in this cause. (MUIR and SHAPIRO, JJ., concur.)
