16 Fla. L. Weekly Supp. 402a
Online Reference: FLWSUPP 165GONZ4
Insurance — Personal injury protection — Deductible — Where insurer received bills in excess of PIP deductible from other medical providers before it received plaintiff medical provider’s bills, but statute of limitations had run on bills from other providers, deductible is applicable to plaintiff medical provider’s bills
[Editor’s note: Cert. denied August 6, 2009. (Florida Orthopedic Center, P.A. v. United Automobile Ins. Co., Fla. 4DCA, Case No. 4D09-3002)]
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. FLORIDA ORTHOPAEDIC CENTER, a/a/o Alexis Gonzalez, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case Nos. 08-012817 (02); 08-039614 (02). March 17, 2009. Counsel: Thomas L. Hunker, Miami. Joseph R. Dawson, Fort Lauderdale.
OPINION
(JOHN B. BOWMAN, J.) THIS CAUSE is before the Court upon appeal from a county court order granting final judgment in favor of Appellee, Florida Orthopaedic Center (“Florida Orthopaedic”). An answer brief has not been filed in this case. The Court having considered Appellant’s initial brief, applicable law, and otherwise being fully advised in the premises finds:
On January 26, 2002, Alexis Gonzalez was involved in an automobile accident. Alexis Gonzalez executed an assignment of PIP benefits in favor of Florida Orthopaedic. On September 17, 2002, Florida Orthopaedic filed suit against United Automobile Insurance Company (“United”) to seek $550 in personal injury protection (PIP) benefits for treatment rendered to Alexis Gonzalez. In response, United filed its Answer and Affirmative Defenses. United also filed a motion for summary judgment on the issue of whether Florida Orthopaedic’s bills fell under the policy’s $2000 deductible. A hearing was held on United’s motion for summary judgment on March 6, 2008. The trial court concluded that Florida Orthopaedic’s bills did not fall under the policy’s $2000 deductible.
The standard of review for a lower court’s order granting summary judgment is de novo. See Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000).
On appeal, United claims that the medical bills at issue fell under the policy’s $2000 deductible. At the hearing, United represented that between April 1, 2002, and July 19, 2002, they received twenty three separate sets of bills from four different medical providers for treatment rendered to Alexis Gonzalez. Before United received the first bill from Florida Orthopaedic, it had received $8250 in bills for treatment rendered to Alexis Gonzalez. However, according to United’s litigation adjuster’s testimony, the five year statute of limitations had run on the bills submitted by the other providers and Florida Orthopaedic’s bills were the only bills that survived, and therefore, fell under the $2000 deductible.
At the hearing, Florida Orthopaedic argued that, under the English Rule, the other providers were “first-in-time, first-in-right,” and therefore, United was required to apply the $2000 deductible to their bills.
Under the “English Rule,” the assignee who first gives notice of his claim to the debtor is preferred and has prior rights. Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 2008 WL 2695876, *2 (Fla. 5th DCA July 11, 2008) [33 Fla. L. Weekly D1746a].
In Simon v. Progressive Express Insurance Company, 904 So.2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b], Simon was the assignee/medical provider who first gave notice of his claim to the insurer. After investigating Simon’s submission, the insurer paid a reduced amount of the bill. Subsequently, the insurer exhausted the remainder of the policy benefits on bills from other assignee/medical providers. Simon brought suit for the remainder of his bill, arguing that, under the English Rule, he was first-in-time, first-in-right. According to Simon, the insurer was required to set aside a “reserve” fund for claims that are reduced or denied. Id. at 449-50. The Fourth District disagreed and held that there is no legal requirement that an insurer set aside a reserve fund for claims which are reduced or denied. Id.
The Fifth District held that the English Rule provides as between assignees of an account, the medical provider who first gives notice of his claim to the debtor is preferred as long as their PIP claim is deemed to be compensable. Stand-Up MRI of Orlando, 2008 WL 2695876 at *2. Further, the court pointed out, “any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment.” Stand-Up MRI of Orlando citing United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 86 (Fla. 2001) [26 Fla. L. Weekly S747a].
This Court finds that the medical provider who was first-in-time lost its place when the insurance company denied their claim. The prior bills of other medical providers did not fall under the $2000 deductible since United was not responsible for their payment. Florida Orthopaedic’s bills moved up in priority when United denied the other medical provider’s bills. As a result, the $2000 deductible must be applied to Florida Orthopaedic’s bills.
ORDERED AND ADJUDGED that the trial court is reversed and this action is remanded for action consistent herewith.
