18 Fla. L. Weekly Supp. 925b
Online Reference: FLWSUPP 1809DAY
Insurance — Personal injury protection — Coverage — Medical expenses — Exhaustion of policy limits — Where there is no allegation that insurer acted in bad faith in handling PIP claims that exhausted benefits while provider was disputing reductions to its bills but before provider filed suit, trial court correctly entered summary judgment in favor of insurer
RHODES & ANDERSON, D.C., P.A. d/b/a VENICE CHIROPRACTIC CENTER (a/a/o JESSICA DAY), Appellant, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellee. Circuit Court, 12th Judicial Circuit (Appellate) in and for Sarasota County. Appeal No. 2008 CA 3409 NC. Case No. 2007 SC 2840 SC. December 9, 2009. Appeal from the Sarasota County Court; Phyllis R. Galen, County Judge. Counsel: Virlyn B. Moore, III, Venice, for Appellant. Betsy E. Gallagher, Kubicki Draper, Tampa, for Appellee.
[Lower court order published at 18 Fla. L. Weekly Supp. 900a.]
(WILLIAMS, Circuit Judge.) The Appellant, RHODES & ANDERSON, D.C., P.A. d/b/a VENICE CHIROPRACTIC CENTER (a/a/o JESSICA DAY) appeals the trial court’s Order granting Appellee’s Motion for Summary Judgment. The instant appeal involves a claim by the appellant, as assignee of Appellee’s insured, against the Appellee, alleging breach of contract under an insurance policy providing personal injury protection (PIP) coverage. The trial court’s January 31, 2008 Summary Judgment found that the Appellee was entitled to summary judgment based upon the exhaustion of benefits. The trial court entered judgment for the Appellee because the total $10,000 PIP benefits were exhausted by payments to various medical providers, including the Appellant, before the lawsuit was filed.
The trial court granted the Appellee’s Motion for summary judgment based on Simon, M.D., P.A. a/a/o Eric Hon. v. Progressive Express Insurance Company, 904 So. 2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b]. The trial court’s order also stated that it found Fink M.D. a/a/o Kim Copeland, v. Progressive American Insurance Company, 13 Fla. L. Weekly Supp. 718b (Fla. 12th Jud. Cir. April 12, 2006), rendered by Judge Goldman to be persuasive. For reasons set out below, the trial court is affirmed on all issues.
The Appellant concedes this Court must affirm the lower court’s summary judgment based upon Fifth District precedent decided after the instant lawsuit was filed. Appellant also states that it is filing this appeal in good faith in order to file a petition for writ of certiorari to the Second District, which has not yet ruled on this issue. In Progressive American Insurance Co. v. Stand-Up MRI of Orlando, 990 So. 2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a], the Fifth District held that a PIP insurer cannot be responsible for PIP benefits once benefits have been exhausted “in the absence of a showing of bad faith”. Id. at 4.
On appeal to this Court, the Appellant raises two issues. First, appellant argues that the instant appeal differs factually from Simon. The Appellant states that it retained counsel in response to the reductions at issue, and through counsel, sent the Appellant a 15 day demand letter which, pursuant to Section 627.736(11), Fla. Stat. is a pre-condition to filing suit. In that letter, the Appellant made a request that the amount in dispute be escrowed, putting the Appellee on notice that the denial was disputed before the Appellant exhausted the amount of benefits available. The Appellant argues that knowledge of the dispute is what distinguishes this case from Simon.
In Simon, however, the Fourth District stated: “[w]e decline to create a requirement that an insurance company set aside a ‘reserve’ fund for claims that are reduced or denied.” Simon at 450. There is no allegation in the Complaint that the Appellee acted in bad faith in its handling of the PIP claims under the policy issued to Ms. Day. The trial court, therefore, was correct in entering its Summary Judgment.
Second, the Appellant argues that Progressive American Insurance Co. v. Stand-Up MRI of Orlando was a significant departure from the essential requirements of the law as provided by the PIP statute enacted by the Florida Legislature and as set forth in the “English Rule” approved by the Florida Supreme Court.
As there is no contrary Second District precedent, or other contrary District Court precedent, this Court is bound by the determination of the Fifth District. See Miller v. State, 980 So. 2d 1092 (Fla. 2d DCA 2008). The Summary Final Judgment, therefore, must be affirmed based on binding precedent from the Fifth District.
