18 Fla. L. Weekly Supp. 98a
Online Reference: FLWSUPP 1801MCCL
Insurance — Personal injury protection — Notice of loss — Where insured has submitted no bills to insurer and has received no treatment from medical provider, but rather, insured seeks pre-authorization for treatment, written notice of covered loss has not been provided, and no benefits are overdue — Insurer’s motion for summary judgment is granted
TINA MCCLENDON, Plaintiff, v. SECURITY NATIONAL INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 502008CC018036XXXXNB, Division “RH”. August 17, 2010. Laura Johnson, Judge. Counsel: John W. Carroll, P.A., West Palm Beach, for Plaintiff. Jennifer N. Lucy, Law Offices of Ross & Leano, Davie, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the court on Defendant, Security National Insurance Company, Motion for Summary Judgment. The court finds as follows:
1. This is an action for $5,436.00, filed pursuant to the PIP statute.
2. Plaintiff, Tina McClendon, alleges that she sustained personal injuries in an automobile accident on August 28, 2006, and “incurred reasonable expenses for necessary, medical, rehabilitative and remedial care.” Plaintiff states in her complaint that she has forwarded all medical bills to Defendant, demanding direct payment to the health care provider. Plaintiff claims that Defendant has improperly denied PIP benefits.
3. Plaintiff’s counsel has filed an affidavit, stating that Dr. Edward J. Penza, DDS, diagnosed bodily injury to Plaintiff arising out of the accident on August 28, 2006, and submitted his plan of treatment to Defendant. Dr. Penza’s affidavit is attached as Plaintiff Exhibit D.
4. Defendant denied medical benefits to Plaintiff, (Plaintiff Exhibit E), stating:
“Our investigation has revealed that the injuries suffered . . . were not related to the ownership, maintenance or use of a motor vehicle.”
5. Defendant has not received any bills, CMS or HCFA forms for services rendered to Plaintiff arising out of the accident on August 28, 2006. (Defendant Exhibit A).
6. Florida Statute 627.736(4)(b), provides that PIP benefits “shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued.”
7. In spite of the statements in Plaintiffs complaint, what she is seeking is pre-authorization for Dr. Penza’s services.
8. However, Plaintiff has incurred no treatment from Dr. Penza that has been submitted to Defendant, and accordingly there is no written notice of a covered loss. Because written notice of a covered loss was not provided to Defendant, there are no benefits that are overdue pursuant to Section (4)(b) of the PIP statute.
ACCORDINGLY, Defendant’s Motion for Summary Judgment is granted. Court reserves ruling as to fees and costs.
