18 Fla. L. Weekly Supp. 692b
Online Reference: FLWSUPP 1808SALL Insurance — Personal injury protection — Coverage — Exhaustion of policy limits — PIP insurer is not entitled to summary judgment where benefits were exhausted after suit was filed and insurer served with process
PRECISION DIAGNOSTIC OF LAKE WORTH, LLC (a/a/o Joseph Sallabi), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-7365 COCE (53). May 20, 2011. Robert W. Lee, Judge. Counsel: Abdul-Sumi Dalal, Law Offices of Steven Lander and Associates, P.L., Fort Lauderdale, for Plaintiff. Michael Rosenberg, Deerfield Beach, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONFOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on April 27, 2011 for hearing of the Defendant’s Motion for Summary Judgment, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument; having made a thorough review of the matters filed of record; and having been sufficiently advised in the premises, the Court finds as follows:
This case involves a relatively narrow issue: is a PIP insurer entitled to judgment in a case when benefits are exhausted post-suit and post-service? In the instant case, the parties concede benefits due under the policy were not exhausted until after the instant lawsuit was filed and State Farm was served with process.
Florida law has well established that an insurer is not responsible for payment of any further benefits once PIP benefits have been exhausted under the policy. An argument can be made that this law applies only to exhaustion which occurs before an insurer is served with a PIP lawsuit. In the case of Richard A. Sheldon, D.C. v. United Services Automobile Ass’n, 36 Fla. L. Weekly D23a (Fla. 1st DCA 2010), the appellate court stated that “if benefits are exhausted after suit is filed, but before the suit is served on the insurer, the suit for benefits may not go forward, because the insurer has met its obligation under the contract to pay the policy amount,” citing Progressive American Ins. Co. v. Stand-Up MRI of Orlando, 990 So.2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a] (emphasis added). Although neither Sheldon nor Stand-Up MRI deal with a factual scenario where benefits have been exhausted post-suit and post-service, the implication of the language in Sheldon suggests that there is a relevant distinction.
In the Seventeenth Judicial Circuit, Circuit Appellate authority asserts that when exhaustion occurs post-suit, the insurer is not required “to set aside a reserve fund for dispute claims.” B & D Chiropractic Center, Inc. v. Progressive Express Ins. Co., 15 Fla. L. Weekly Supp. 334a (17th Cir. Ct. 2007). The B & D case involved a post-service exhaustion scenario. See Initial Brief of Appellant, at 1, 4. The implication of this case is that there is no difference between exhaustion pre-service and post-service. However, B & D was decided before both Sheldon and Stand-Up MRI of Orlando. A careful review of all three cases leads this Court to the conclusion that if a bill should have been paid presuit, the insurer’s failure to pay the bill is at the insurer’s own peril even if benefits are later exhausted post-service. Once a lawsuit is served, the insurer is on notice that the provider or patient is clearly seeking to enforce its legal rights — it is no longer just a possibility. Accordingly, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion for Summary Judgment is DENIED.
