17 Fla. L. Weekly Supp. 386a
Online Reference: FLWSUPP 1705HARKInsurance — Personal injury protection — Coverage — Exhaustion of policy limits — Partial summary judgment is entered in favor of insurer where no benefits or damages are or will be due and owing as benefits are exhausted and medical provider has withdrawn or dismissed claims
TAMPA BAY IMAGING, LLC, as assignee of COLTON HARKINS, Plaintiff, v. ESURANCE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 08 26736, Division H. November 17, 2009. Eric R. Myers, Judge. Counsel: Philip Friedman, Friedman & Leifer, P.L., Tampa, for Plaintiff. Scott Dutton, Dutton Law Group, P.A., Tampa, for Defendant.
PARTIAL SUMMARY JUDGMENT IN FAVOR OF DEFENDANT, ESURANCE INSURANCE COMPANY
This matter came on to be heard on September 10, 2009 on the Defendant, Esurance Insurance Company (“Esurance”), motion for summary judgment, and after having reviewed the court file, considered argument of counsel and the controlling case law, IT IS ORDERED AND ADJUDGED:
Tampa Bay Imaging LLC (hereinafter “TBI”) initially brought a Complaint which stated a claim for “Damages For No-Fault Benefits”. On September 9, 2009 TBI served Plaintiff’s First Amended Complaint. Under the First Amended Complaint the Plaintiff, by and through its counsel, states and stipulates that they are not seeking nor will they be seeking against the Defendant, Esurance, either now or in the future benefits or damages under the policy at issue or under the Florida Motor Vehicle No-Fault Law. Futhermore, the Plaintiff, TBI, states and stipulates by and through their counsel that they are not seeking nor will they seek in the future benefits or damages under the Florida Motor Vehicle No-Fault Law.
Even if they Plaintiff were seeking benefits or damages either under the policy at issue, or the Florida Motor Vehicle No-Fault Law, this Court finds that benefits were exhausted on September 5, 2008 so that no benefits would remain due or owing for the TBI’s charges in dispute in accordance with Simon v. Progressive Express Insurance Co., 904 So. 2d 449 (Fla. 4th DCA 2005), Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So.2d 3 (Fla. 5th DCA 2008) and Simon v. Progressive Express Ins. Co., 904 So.2d 449 (Fla. 4th DCA 2005), as well the contolling authority in the 13th Judical Circuit on the issue of exhaustion: Chambers Medical Group, Inc. v. Progressive Auto Pro Insurance Company, 13 Fla. L. Weekly Supp. 367a (Fla. 13th Jud. Cir. December 16, 2005); Physical Medicine Center v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 210c (Fla. 13th Jud. Cir. Nov. 14, 2004); Comprehensive Physician Services v. The Hartford Insurance Company of Midwest, 12 Fla. L. Weekly Supp. 351a (Fla. 13th Jud. Cir. January 20, 2005); Francisco Gomez, M.D. (a/a/o Noemia Brunet) v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 121b (Fla. 13th Jud. Cir. Oct. 20, 2004), Premier Open MRI, LLC v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 839a (Fla. 13th Jud. Cir. May 26, 2004); Vincent DiCarlo, M.D. & Assocs. v. American Home Assurance Co., 11 Fla. L. Weekly Supp. 305 (13th Jud. Cir. Ct. Jan. 20, 2004), MTM Diagnostics, Inc. v. State Farm Mutual Automobile Insurance Co., 9Fla. L. Weekly Supp. 581e (Fla. 13th Cir. Ct. November 20, 2000).
WHEREFORE, for the foregoing reasons, in accordance with the undisputed facts in this record, and the case law cited and after having considered argument, statements, and stipulations of counsel for the Plaintiff, Partial Summary Judgment is hereby entered in favor of the Defendant, Esurance. No benefits or damages are or will be due or owing as benefits are exhausted, and such claims have been withdrawn or dismissed by the Plaintiff per stipulation of its counsel. The Court retains jurisdiction to tax fees and costs.
